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Strict Scrutiny
The Battle for Native Rights & Comstock: The Zombie Law From Hell
01:02:26
Kate and Leah speak with Rebecca Nagle, author of By the Fire We Carry: The Generations-Long Fight for Justice on Native Land about the battlefield that is federal Indian law. Then, all three hosts speak with law professors Reva Siegel and Mary Ziegler about their paper for the Yale Law Journal, Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It.
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- [00:00]
Advertiser
Want to shop Walmart? Black Friday Deals first Walmart plus members get early access to our hottest deals. Join now and get 50% off a one year annual membership. Shop Black Friday deals first with Walmart plus see terms@walmartplus.com Mr. Chief justice, please report. It's an old joke, but when I argue, a man argues against two beautiful.
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Rebecca Nagel
Ladies like this, they're going to have the last word.
- [00:31]
Kate Shaw
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.
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Leah Lippman
Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts for this segment. I'm Kate Shaw.
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And I'm Leah Lippman. We have two great interviews for you today.
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Kate Shaw
In the second half of the show.
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Leah Lippman
Melissa will join us and we'll talk.
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Kate Shaw
To the authors of a new article.
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Leah Lippman
About the Comstock act, the law that Republicans in Project 2025 are going to try to revive to enforce as a federal abortion ban.
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Kate Shaw
But first, we will be discussing a.
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Leah Lippman
Fabulous new book by one of our favorite repeat guests of the Rebecca Nagel.
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Kate Shaw
Her new book is by the Fire.
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Leah Lippman
We the Generations Long Fight for Justice on Native Land. If you don't already know, Rebecca is.
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Kate Shaw
The host of the award winning podcast this Land, a documentary podcast whose most recent season was about how the far right has sought to use Native children and to use the courts to undermine tribal sovereignty. Her book by the Fire We Carry is an extraordinary work of journalism, history.
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Leah Lippman
Memoir, law, weaving together history about the forced removal of Native peoples, a small.
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Kate Shaw
Town murder in Oklahoma in the 1990s.
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Leah Lippman
And the legal battles the that resulted in the Supreme Court reaffirming Native rights to land in 2020.
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Kate Shaw
Welcome back to the show, Rebecca.
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Rebecca Nagel
Thank you so much for having me. I'm really excited to have this conversation with you guys.
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Leah Lippman
Well, we're so happy to have you. And let's just start by asking, you know, you've worked across a lot of different genres and mediums, including the wonderful podcast series that Leah just mentioned. So what made you decide to tell this story in the form of a book?
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Rebecca Nagel
Yeah, I mean, I'm sure as you guys are familiar with, there's a really big difference in sort of how you present information and what information you present in the written form and in audio. And you know, I fell in love with audio while making the podcast and then sort of had the same process with the book. There's just a way that you can go deeper and further and wider with your audience when it's on the page, you know, it's sort of hard to keep track of details when you're just hearing it, but I find that when you're on the page, you can pack in a lot more information. And so I found, you know, I am sort of a completist when it comes to my research, you know, sort of overturn every stone, followed down every rabbit hole. And so I loved having a format where I could just present all the information, but still in a way that was really readable and accessible. So, yeah, it was a really cool experience to be able to write my first book.
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Leah Lippman
We wanted to start with some of the big picture themes of the book and lessons it kind of provides. And so in the book, early on, you write that quote, the legacy of colonization is not just a problem for Indigenous peoples, but a problem for our democr. End quote. And you later describe Indigenous rights as a canary in a coal mine for other rights. Obviously, we talk a lot about on this podcast, you know, the threats to democracy and the stakes. So could you tell us more about how you see the connections between Indigenous rights and the strength of our democracy?
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Rebecca Nagel
Absolutely. I think that we act like our government created this empire where it expanded from sea to shining sea and took over the lands and lives of people who had very little say in how those things happened. And that that's not part of the DNA of our country. You know, our founding fathers, you know, with all of their flaws, talked a lot about the consent of the governed. But the United States has always had an edge of empire where there are people who live under the raw power of our government, but not the liberties and the privileges of our Constitution. You know, one of the legal scholars that I read a lot while researching the book is Ojibwe legal scholar Magg Black Hawk. And one of the concepts she talks about in constitutional law is how the principles of federal Indian law that the US Created to dispossess Indigenous people of our lands governs how the US Treats people living at the margins of our empire today. And I think, too, you know, one of the big themes of the book, I talk a lot about this really tragic chapter of both indigenous history and U.S. history, which I think most people know as the Trail of Tears, is our forced removal of our tribes from our home homelands. And I think that act in that chapter of American history can only be described as genocide. And I think for us to have a government that committed genocide, but to have never had a public process where we both take account for that, but also reform our government and our democracy so that something like that never happens again. When we look at other governments that have been held accountable for genocide, we expect that reckoning and that change, but the US has never done it. And so I think that that's something that we really need to reckon with as U.S. citizens today. And that's, you know, part of the complicated part of what we inherit, you know, from our history.
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Leah Lippman
That's, I think, a great, high level overview. And the book spends a lot of time on history, including the dispossession and forced relocation that people know as the Trail of Tears. And it weaves together the book, a lot of chapters of Native history, actually your own family's history, with the story of the case that ultimately resulted, first Carpenter versus Murphy, and then ultimately McGirt versus Oklahoma. And can you just talk a little bit about how you decided to tell the story in this narrative style that wove together these very disparate moments in time and both reporting and archival research that are all about the sort of repetition and kind of inheritances of very related themes, but that took you across a huge swath of time and place and topics?
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Rebecca Nagel
Yeah, absolutely. I mean, I think that the history is why the present day matters. When you think about the case McGirt v. Oklahoma, and the central question presented by that case was whether or not in 2020, the Muskogee Nation still had a reservation. And what had happened is that the way you get rid of a reservation is Congress passes a law getting rid of or changing the boundaries of a reservation. And that had never happened to Muskogee Nation. But the state of Oklahoma had pretended, you know, for over 100 years that the tribe no longer had a reservation and wanted that to be enough, basically wanted their century of illegal behavior to be enough for the Supreme Court to say in 2020, you know, okay, the tribe no longer has a reservation. And I think the reason that the history matters is I think, one from the perspective of tribal citizens, when we think about all that our ancestors sacrificed and all that our ancestors did so that we could have that legal right to our land that we're asking the Supreme Court to uphold. And I think on the other side of it, again, it's this question of looking at our history and why haven't we reformed our laws for these things to keep repeating? I think we still live under a legal regime in the area of federal Indian law that has this inherent contradiction where through the treaty clause, through the over 300 treaties that the US has signed with Indigenous nations. Our inherent sovereignty is legally recognized, and that legal foundation is part of U.S. law. But then the other thing that we have is this American tradition of railroading tribes, because we can and not, you know, what that looks like in the courts and in the context of the Supreme Court is not following the law when the law is on the tribe side. And I think that was the real stakes of the case was, was the Supreme Court going to follow the law and uphold the reservation or not? Because it was really inconvenient to non Native people and would piss off the state of Oklahoma. And that that's still how the law works for Indigenous people here, you know, in the 2020s in the United States is a real problem and I think is also a legacy, unfortunately, of that history and is us never really dealing with it.
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Leah Lippman
So we will come back to, you know, the courts and Native matters and courts unwillingness to kind of follow the law. But as you were just talking, you know, you emphasize the issue in the case being about the land. And of course, you named your podcast this Land. And a lot of the book, as well as the cases and Native history, relies on the land as a measurement. And the book discusses the relationship of land, language, and culture. So could you talk some for our listeners about how the Native relationship to the land has evolved?
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Rebecca Nagel
Yeah, absolutely. And I think it's a dualistic relationship where I think a lot of times when people think about what Indigenous peoples lost, they think of land. But that's just what white people gained. And what Native people lost is actually a lot more, because tied to the land is our culture, our traditions, our histories, our stories, our way of life, and you can't separate out the two. So a lot of times when you see land loss for tribes, you also see loss of things like language and culture. One of the really cool things I got to do while reporting the book was meet a Muskogee elder named Rosemary McCombs Maxey. And she actually runs a language school in the summers on her land. And so where she lives is land that's been in her family since before the 1900s and was allotted to her land when Muskogee land was privatized. And most land that was assigned to tribal citizens during that period of time was lost by sale, swindle, theft, by a lot of different criminal enterprises to take advantage of Native people. But Rosemary was able. Rosemary and her family were able to hold onto their land. And now that land is a nest and a learning place for Muskogee language. And culture. And so, just like loss can happen with land, what we also see is places where indigenous people have managed to hold onto our land are often the places where languages are still spoken and where cultures are still practiced.
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Leah Lippman
So I think we want to pivot a little now to the Supreme Court. And before we get specifically to the McGirt case and Carpenter vs. Murphy, which preceded it, wanted to ask a question about actually, the justice whose voice is at least part of the opening music for our podcast, which is Ruth Bader Ginsburg. And the book makes clear she had a complicated legacy when it came to federal Indian law, although that changed somewhat near the end of her term on the court. And some of that, you know, kind of her early decisions in Indian law cases just seem to stem from ignorance, which is a trait the public and the Supreme Court justices seem to share. And a lot of the books suggest that much of what is generally known about Native history is just wrong. So I don't know how much you want to talk about Justice Ginsburg or more generally, just what do you think people are getting the most wrong about Native history? And the list is long. So just, you know, choose whatever you choose, whatever you think our listeners should hear, kind of like most pressingly. But, you know, what do people most need to learn from your book, specifically and more generally about Native history?
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Rebecca Nagel
Oh, man, where to begin? But no, I mean, I actually think that, like, the erasure of Native people from pop culture, from the media, from K through 12 education, from law school textbooks and curriculum is part of how anti Indigenous racism functions now. You know, it's sort of people pretend almost like we don't exist. And a lot of what people do know of Native history, whether it's Columbus or Pocahontas or Plymouth Rock, is usually pretty wrong. And so, yeah, and I think what's sad is that you would expect, you know, a president or a senator or a Supreme Court justice to rise above that sort of regular level of ignorance, but they don't, you know, and so Ruth Bader Ginsburg had a very mixed track record when it came to tribal rights in front of the Supreme Court. She authored a decision called Cheryl, which was a holding that basically a tribe couldn't come back and assert their treaty rights because they had waited too long to do that, which isn't normally how treaty rights are supposed to work. And so I think it just shows that, you know, I think sometimes Democrats or liberals want to assume that they're on the right side of an issue without necessarily doing the work. And not that it always. But I think that that can often happen with Native issues. And so liberals and Democrats are no less immune from the ignorance. And actually supporting tribes and supporting tribal sovereignty requires learning about it. And it's also, it's not just the left side of the aisle. There are some choice quotes from Alito and Roberts and people who, I mean, it's kind of shocking, if you think about it, that, you know, the people who are literally in charge of enacting these laws don't know what it is. And that, you know, puts tribes at a lot of risk.
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Leah Lippman
Can I just make one more point, which is that maybe in addition to these kind of more general shortcomings, I thought you made a really interesting and illuminating point about maybe Justice Ginsburg specifically, who spent much of her career before she was a judge, fighting for rights in a real kind of like individual rights framed kind of register. But that maybe, maybe because of that, maybe not, but she had a very difficult time understanding that there's a core component of many claims that federal Indian law cases, claims predicated in Native rights and sovereignty bring, which is that there's a communitarian as opposed to an individualistic aspect to the way rights are held and asserted, and that she maybe in part attributable to her background, fundamentally failed to grasp that. Did I get that basically right?
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So can I add in one, one complication to that? Because I agree that struck me as like a really interesting kind of frame and possible explanation for what was happening. But the thing is, at the same time, she's messing up federal Indian law, perhaps for that reason, she does seem to understand the nature of collective communitarian rights when it comes to, for example, political representation for black voters under the Voting Rights Act.
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Kate Shaw
Right.
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Leah Lippman
Like she seemed to get why the Voting Rights act could and should secure political representation for black voters as a group, you know, when that claim isn't by its nature kind of individualistic, even though that didn't translate over to federal Indian cases.
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Rebecca Nagel
Yeah, it's interesting. I mean, I think that a lot of times what fighting for marginalized groups in the United States looks like, you know, what you were saying, Kate, sort of fighting for individual rights. And, you know, exactly like you said. Right. That are held by tribes are different. You know, they're held collectively. And, you know, I think one of the things that's hard for people is respecting tribal sovereignty even when they don't agree with the decision being made by the tribe, which is a case that Ginsburg took on, which was about different enrollment criteria in a Tribe for children whose mom was native versus whose dad was native. You know, she was trying to fight for the rights of women by disrespecting the right for tribes to determine for themselves who's a member and who's not. And I think that's one of the things that you run into with tribal sovereignty a lot. And one of the things I say is, you know, respecting tribal sovereignty when you agree with a tribe and then not respecting tribal sovereignty when you don't agree with a tribe is colonization. Like it's not respecting tribal sovereignty. It's exactly how colonization works actually. And part of sovereignty, which I think is something that as indigenous people we struggle with too, it's part of sovereignty is making mistakes like our tribes aren't going to be perfect. You know, which is another thing, you know, I touch on, you know, some of the harmful things that my tribe has done and the accountability that we have to take for that. You know, part of sovereignty is making mistakes and hopefully learning from those mistakes. But if we, if we demand that tribes be perfect to have sovereignty, that that's, you know, that's just how colonization works.
- [17:10]
Kate Shaw
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- [19:08]
Leah Lippman
So transitioning to someone who does respect tribal sovereignty, I wanted to talk a bit about Justice Gorsuch's reputation as an ally for Native rights. You know, you described Gorsuch as being loyal to his judicial philosophy in McGirt when he wrote the 54 opinion upholding the boundaries of the reservation and the existence of the reservation. And that's something he's done, you know, in general when it comes to Native rights. And I was wondering if you could talk a little bit about why you think that is, but also where the other Republican justices kind of fall when it comes to their purported loyalty to originalism or textualism as it relates to cases involving federal Indian law or the right of Native people.
- [19:48]
Rebecca Nagel
I mean, I think Gorsuch surprised a lot of people his first couple years on the bench in not just how he voted in federal Indian law cases, but how he wrote, you know, both the McGirt decision and then his concurring opinion in Brackeen, his dissent in Castro Huerta. He is making his position very clear and very known. And I think it's one of those things where it's called passionate, but it's not called passionate. When Thomas writes a concurring opinion that like basically all of Federalists law is bunk, you know, or I think there's some radical stuff coming from all sides. But not that Gorsuch is radical, but I think it's textualism at its best in that, you know, Gorsuch looks at the text of congressional acts and the text of treaties and says, you know, they mean what they say. And for us to hold otherwise would be to not follow the law. And so there's a really great line in the McGirt decision where he says that would be the rule of the strong, not the rule of the law. Thomas and Alito have some pretty extreme views when it comes to tribes. I think you see that pretty well in the ICWA cases. So Thomas's concurring opinion in the baby girl case, which is old, but it's like one of those. I don't know if you guys see this in other places, but people love to quote the Thomas concurring opinion, even though it's not controlling. But you find it everywhere. That concurrent opinion is so annoying. And then you can kind of also see in the Brackeen case, I think Roberts too, like, I think his dissent in McGirt. So he held that, okay, well, Congress never got rid of the reservation, but, like, I mean, you know, it can't be a reservation. Like, that's ridiculous. It's like basically his opinion, which, as you guys would say, is a lot of vibes and not a lot of law. And then I think Coney Barrett, I think, is the kind of the justice to watch. I think her opinion in Brackeen was pretty strong. She basically gave a little bit of constitutional federal Indian law essay. She also voted with the majority in Castro Huerta. So I don't know, it'll be. I think she's the conservative justice to watch.
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Leah Lippman
So that was a good overview of where a lot of the players, in terms of where they came down in McGirt sort of were and where they are in other federal Indian law cases. McGirt was the case that the court ultimately decided. It had this really important predecessor, Carpenter vs. Murphy, which is the case that you were really reporting in the first season of your this Land podcast. And then in a large portion of the book, and you said earlier, like, you are a completist in your research, and it shows so beautifully in, like, the very, very detailed reporting of the actual crime that gave rise to the Carpenter vs. Murphy case. That case ended up, it seems, resulting in a 4, 4 tie because Justice Gorsuch recused in the case. And so the justices just waited for another case in which all nine could participate. And that's how McGirt became the case that the court decided. And of course, it was really important to the disposition of the Gorsuch was able to participate in it. So that's an enormous, enormous victory and reverberated in all kinds of ways. Can you just maybe say a couple of words about sort of the stakes of what it actually meant for the Supreme Court to rule against Oklahoma in McGirt versus Oklahoma? And then I think we should move to the backlash, which happened essentially immediately after the court handed down the decision.
- [23:16]
Rebecca Nagel
Yeah. So the McGirt Supreme Court decision upheld the reservation of Muskogee Nation and subsequently lower courts in Oklahoma based on McGirt upheld eight other reservations in Oklahoma taken together, including the reservation of my tribe, Cherokee Nation. Taken together, those reservations COVID 19 million acres, are larger than nine US states, including West Virginia, cover about 40% of the land in Oklahoma, and it represents the largest restoration of tribal land in US History. What is ironic about this Supreme Court decision being so historic is that the Supreme Court didn't overturn anything, didn't change precedent. They didn't change the rules that courts are supposed to use to determine whether or not a reservation still exists. All the court did was follow the law. But in the arena of federal Indian law, unfortunately, that is still radical because what happens over and over again is when tribes have a clear legal right to something that upsets a state or a large base of non native constituents, they come to the courts and they say, hey, this isn't fair. We don't like this. And the courts are like, okay, you're right. And that kind of bending or breaking of the law happens over and over again in U.S. history. And sort of what we have is this history where the US Government is spineless when it comes to enforcing treaty rights. And so what is historic about the McGirt decision is that this time it did. This time the court held the law, and this time the court followed the law.
- [25:02]
Leah Lippman
So now I kind of want to ask about the backlash because you've now gestured toward Castro Huerta a couple of times where, you know, the court did, I think, effectively overrule some rather significant precedents in federal Indian law and kind of eat away at some of the potential significance of McGirt. So could you walk us through what happened after McGirt and whether there are kind of additional cases you're keeping your eye on in that space?
- [25:31]
Rebecca Nagel
Yeah. So basically, Oklahoma threw a temper tantrum led by our governor, a man named Kevin Stitt. And at first they actually tried Congress. So they tried to get congressional legislation to roll back the victory. Congress wasn't having it. And so they turned to the courts. And so Oklahoma did the very, very radical thing of asking the Supreme Court to overturn a decision it had just decided over 50 times. And what I saw by getting an email dump from the governor's office is that in private emails with like local oil and gas leader, because Ruth Bader Ginsburg, even though she had this mixed track record, she came through. She was part of the 5, 4 decision. She was of course replaced by Amy Coney Barrett. And so in these private emails, they're talking about how they think that the court will change its decision within like two years because the makeup of the bench has changed. And so they hired, you know, a high powered corporate law firm. The AG had resigned. And so the governor got a handpick in and kind of shove this legal, this extremely radical legal attack. You know what they're Asking the court to do is kind of unprecedented. And one of the really, I think important things is that they used lies, like, straight up wrong crazy information about crime in Oklahoma as the excuse as to why the court should take this radical standard up. And the court bought it. And so I think when we talk about just like, facts and whether or not we're working in the realm of facts, I think Castro Huerta is a really good example of the high court playing very fast and loose with the reality on the ground, which we know we like, they're getting more in the habit of doing. But basically the court took the case. But on this narrower question of whether or not states have jurisdiction to prosecute crimes committed by people who are not native, but where the victim is native, and they said yes. And there's this great line in Gorsuch's dissent where he says, you know, the majority opinion comes as if by Oracle, like, sort of making fun of just like it's divorced from precedent. There's sort of. Kavanaugh wrote it. It goes against all of these previous court decisions, but he doesn't even can deal with the precedent that he's contradicting. So he's not saying, I'm overturning this precedent. He just ignores it. And so I think it's legally. It's one of the weirdest and sloppiest opinions I've ever read. And I think it really shows the court, instead of following the law, just choosing the outcome that they want and choosing an outcome basically based on political reasons, you know, that it was this backlash to the legal victory from the truth.
- [28:27]
Leah Lippman
Can I ask you to say a little bit more about this kind of fast and loose with the facts because it was such a revelatory part of your discussion, actually, of both cases, Oklahoma's lawyers, both in McGirt and in Castro Huerta, successfully in Castro Huerta, seem to have manufactured numbers about individuals who might be, you know, immediately freed if the court ruled against Oklahoma, who might go. The types of crimes that might go unprosecuted. And you really did try to run down where some of the facts in briefs and presented to the court and even in the opinion in Castro, where to were even coming from. And it seems like maybe they were just made up. Is that the best way to read that part of the book?
- [29:05]
Rebecca Nagel
Yeah. I mean, so there were some facts and figures where you could. From the data I got from the Oklahoma Department of Corrections, I'm like, okay, I can see where they're getting this number, but they're like, doubling it, or, you know, like, they're sort of being like, okay, well, there. There would also be this. And you can kind of see where they're getting it. And it's a clear exaggeration. But then there was this one number which they used in their petition to try to get the court to take Cacho Huerta, which they said that because Oklahoma had lost jurisdiction over some crimes, over the reservations, that 76,000 past convictions could be affected. And at the time, that number was, like, three times the total prison population in the state and, like, over 60 times the number of native defense incarcerated from the affected area. So it's just from Mars. But not to dunk on Robert Barnes of the Washington Post, but to dunk on Robert Barnes from the Washington Post, that number was included in an article that he co authored without any of that context in the petition. They said, okay, this number came from a survey of district attorneys. So I asked the district attorneys, show me the numbers you gave to the governor, so I can kind of check the math. And the ones that got back to me said, we don't know what you're talking about. We didn't send the governor any numbers. And so we even followed up with the governor's office to say, hey, the DA's say they didn't give this to you. Do you have another explanation? And they didn't have anything else to say. So that particular number, there's a bunch that looks exaggerated, but that particular number, I mean, it looks like it fell out of the sky. And it actually at first appears not in a Supreme Court brief, but in a file Fox News interview that Stitt did. And so you have this politician kind of running around and saying this wild number, and then it ends up before the Supreme Court. And I think. I think it brings up this larger issue of when you get to the higher levels of appellate law, what are the checks on facts? Because. And we're seeing it, you know, in the gay wedding case, like, we're seeing it in all these cases where it's also just like, who even are the people bringing these cases? Do they have standing? What are the facts on the ground? And I think that that's concerning because it makes it easier for people who are bringing activist litigation to bring it, because they're sort of making up what's happening on the ground instead of having the pressure of having to find, like, a real case where there's real harm.
- [31:30]
Leah Lippman
Yeah, yeah, it's. Absolutely. This is a phenomenon that we were seeing across a bunch of different domains. So you know, you've mentioned ICWA once or twice. We don't have a ton of time, but do you want to just say a couple of words about, about how Holland versus Burkin, which you've discussed with us and in the second season of your podcast, fits into the larger story of the fight for Native rights?
- [31:49]
Rebecca Nagel
Yeah, I think that it's a story with a good ending, which is that I think it was probably one of the biggest legal threats to tribal sovereignty that we've seen in the past few decades. And so for people who don't know, there had been a really like over a decade long effort to use these custody battles over Native children as a way to eat at the constitutional bedrock of the existence of tribes. Literally, like it's sort of not, there's not a way to overstate the implications of that decision and the ramifications of it. And so, and there was real fear. I, after reading the Castro Huerta opinion, which came out the term before, I was like, oh, we're, we're screwed. You know, this is not going to be good. And then it was, it was authored by Amy Coney Barrett, and the court basically said, this is not how the Constitution works. And then on some of the other claims they said, you don't have standing. Come back when you have standing. And so the plaintiffs lost on all grounds. And so it was a great victory. And if folks want to learn more, we go into both sort of the story behind how that case was formed and then the ultimate decision in season two of this land.
- [33:08]
Leah Lippman
So ultimately, in researching this book, what did you end up seeing the law as? Because now several times, you know, you've mentioned how these results came about because the justices followed the law, which seems to be occasions where the law can be a tool for good. Right. With respect to federal Indian law and Native rights, on the other hand, obviously a lot of the history is law being used to do a lot of harm. So yeah, like where did you kind of come away from the book and just thinking about what law is maybe in general or in this area in particular.
- [33:46]
Rebecca Nagel
You know, federal Indian law, I think is inherently full of contradictions. So treaties are the supreme law of the land, but Congress can abrogate them at any time for any reason. You know, tribes are sovereign, but we don't have jurisdiction over a lot of what, over the conduct of non natives on our land. And so current Supreme Court Justice Clarence Thomas has even called federal Indian law schizophrenic, which is also not great way to talk about people who have mental health struggles. But in talking with legal scholar Maggie Blackhawk, she had a much better metaphor for it, which is that it's a battlefield. And I think when you think about federal Indian law, it's the totality of that history. So it's the losses that our ancestors faced, but it's also their victories and the compromises that they made. And so, you know, federal Indian law isn't all good or all bad. It's the totality of that. And so whether it was indigenous warriors or diplomats or lawyers or advocates, you know, our ancestors created a legal foothold in the Constitution, and then throughout the generations in American law that we continue to leverage. And I think what's hard about that is that the protections that we have under US Law are not enough, but we have to constantly fight for them to be followed and for them to still exist, even. And so we don't, you know, we don't have a constitutional amendment or a Supreme Court decision, you know, declaring our legal support, subordination over or declaring it unconstitutional. And so we still live under a government that I think contains both impulses, which is the impulse to recognize the inherent sovereignty of indigenous nations and the sovereignty that is there, you know, in these documents, in our law going all the way back to the founding. And I think the impulse to railroad tribes, because it can. And I think that it's one of those things where rather than celebrating these Rare victories like McGirt, the McGirt decision should have been predictable, because if you look at the law, that's what the law said the outcome should be. And so I think that that's what we need to think about, working towards where the law isn't something, is something that tribal nations can rely on, and unfortunately, we're not there. But I think McGirt is an interesting way to kind of unpack all of that and think about it. And for me, the takeaway of this legal victory isn't that, okay, well, if we all come together and we just fight really hard, justice will prevail. It's that while justice for Indigenous nations is rare in our democracy, it is possible.
- [36:48]
Leah Lippman
Yeah. And I mean, that Maggie Blackhawk quote and the kind of battlefield metaphor. All of the attentions and contradictions that you've just been alluding to are very present in the kind of pairing of cases of McGirt and then Castro Huerta. And so I think that those two cases are just a perfect distillation of these much bigger, broader, really important themes. So there is much, much more kind of elaboration on those themes in the book, which once again is by the fire we the generations long fight for justice on Native land. It is beautifully told. It is genuinely revelatory. Rebecca Nagel, thank you so much for joining us to talk about it.
- [37:22]
Rebecca Nagel
Oh, thank you so much for having me. It's always a pleasure to talk to you guys.
- [37:27]
Kate Shaw
We're going to take a quick break.
- [37:28]
Leah Lippman
And when we come back, we'll get.
- [37:29]
Kate Shaw
Into a subject we've gotten a lot.
- [37:31]
Leah Lippman
Of questions about from listeners, the Comstock Act.
- [37:33]
Kate Shaw
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- [39:37]
Leah Lippman
US.
- [39:44]
Reva Siegel
Today we are delighted to be joined by Reva Siegel of Yale Law School and Mary Zigler of UC Davis School of Law. They are the authors of a terrific new paper called How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom and May Again Threaten It. This article is forthcoming in the Yale Law Journal, and for that reason and many others, we are delighted to welcome Reva and Mary to strict scrutiny.
- [40:09]
Mary Zigler
Glad to be here.
- [40:11]
Leah Lippman
Delighted regular listeners will be very familiar with the Comstock act, the 1873 anti vice law that when it was passed in 1873, criminalized transmitting via the US mails any obscene literature and articles of immoral use, including any article or thing designed or intended for the prevention of conception or procuring of abortion. It had been correctly relegated to the dustbin of history until some right wing lawyer decided to try and resuscitate it, an effort that is very much underway right now. Comstock figured prominently in the mifepristone litigation, the medication abortion case, where one of the arguments below was that sending abortion pills through the mail violated the law. Comstock has also been a focus of Project 2025, which has urged enforcement of Comstock in a potential future Trump Vance administration. We've repeatedly gestured toward this very real possibility without digging into to exactly how unhinged and lawless the underlying theory is. Which, to be clear, doesn't mean a majority of the Republican justices won't endorse it.
- [41:12]
No, it very much doesn't. But honestly, if reviving this zombie law already seems dystopic, it is somehow much, much worse when you actually survey the history of this law and also its enforcement. So, Mary, let's start with you. We have referenced Anthony Comstock before on this podcast, but only kind of glancingly can you help us fill in the galaxy. Who was Anthony Comstock?
- [41:37]
Mary Zigler
So Anthony Comstock was in the 19th century, a civil War veteran who became kind of obsessed with sex, with pornography, with his own masturbation habits, which he found disturbing.
- [41:48]
Leah Lippman
This is sounding familiar. You could substitute in some other names, but.
- [41:52]
Mary Zigler
Sorry, yeah, exactly. It won't sound jarring to anybody. And he believed that illicit sex was destroying the nation. He found some wealthy patrons in the ymca, which was sort of populated by New York millionaires, tried to transform the meaning of obscenity in New York and then took the crusade nationally. And we're still in some ways kind of living with the legacy of that today.
- [42:12]
Leah Lippman
So you're saying a guy who accepted a ton of largess from billionaires was Trying to advance an anti majority, anti sex, anti women's liberation project. This too is sounding.
- [42:24]
Mary Zigler
Can you believe that?
- [42:24]
Leah Lippman
This too is sounding eerily familiar.
- [42:26]
Wait, wait.
- [42:26]
Reva Siegel
You're hung up on the billionaires? I'm hung up on the YMCA and the Village People. Like Anthony Khan stock would be dying if he knew. I mean, just dead again.
- [42:36]
Mary Zigler
Yeah, that's true. Yeah, he would be pretty devastated by that. My favorite YMCA character was Samuel Colgate of Colgate Toothpaste, who was marketing Vaseline as a contraceptive. Listeners, Vaseline is not a contraceptive.
- [42:48]
Reva Siegel
Just don't try it.
- [42:49]
Mary Zigler
Yes, but he was doing this while funding Comstock obscenity campaign. Yeah. So there was a lot of hypocrisy for the rich in this whole thing as well.
- [42:59]
Leah Lippman
The vibes are immaculate.
- [43:02]
Reva Siegel
Reeva, you detail how the Comstock act was used to both police speech and intimate life. I think we all understand how the use of this act to police intimate life would happen. I think people are less familiar with the speech aspect of this and the history of the Comstock act and its relationship to the development of free speech doctrine. So can you start us off by telling us about. About Victoria Woodhull, who, incidentally, was the first woman to declare her candidacy for President. She was also the first woman to operate a brokerage firm on Wall street and to operate a newspaper, which she did with her sister, Tennessee Claflin. But can you explain how her objection to the sexual double standards of the day actually precipitated the passage of the Comstock Act?
- [43:49]
Kate Shaw
Woodhull figures as kind of the origin story for Comstock.
- [43:53]
Mary Zigler
She.
- [43:53]
Kate Shaw
She's something like the bad girl of the woman.
- [43:57]
Reva Siegel
A nasty woman.
- [43:58]
Leah Lippman
A childless cat lady.
- [44:00]
Kate Shaw
Yes. In the suffrage movement of the era, in the sense that she's both prominent in asking for the vote. In 1871, she's before the Judiciary Committee petitioning for a statute recognizing women's right to vote under the 14th Amendment. But she's also lecturing widely on free love and talking about marriage as legalized prostitution, so drawing crowds on both fronts. And she decided that she was gone. In her newspaper going to take on Henry Ward Beecher, who's prominently having an affair with one of his parishioners, and expose this affair in her newspaper to show the hypocrisy of the devout and also the ways in which men are entitled to have frolics outside of marriage in ways that women are not. The sexual double standards. Fancy that. A man of prominence in the community who might frolic outside of marriage, a.
- [44:55]
Reva Siegel
Religious man, a Religious man.
- [44:57]
Kate Shaw
And so what happens is that I guess you could say that Comstock decided to hitch a ride to her train because by prosecuting her under the existing obscenity statute, he would, you know, get a hit of her notoriety, which he does. However, the prosecution both. We could say it succeeds and fails. It fails because the law is held not to apply to newspapers. On the other hand, he both locks her up the night of the election. He then takes this case of the woman he couldn't stop for obscenity, which is what he calls her newspaper, to Congress, saying, we need a new bad, leaner, meaner obscenity law, which is the genesis of our Comstock Law. So in that respect, the law starts with Woodhull as its target.
- [45:51]
Leah Lippman
I just want to circle back to something we discussed with John Lovett on our Project 2025 episode, which was the possibility that they would try to label the 19th Amendment and Women's ability to vote obscenity. That could and should be prohibited. And it seems like that wasn't that far off.
- [46:07]
It was pure comedy when you guys did it with Lovett. And it turns out actually history supports targeting this kind of speech under, like, existing, you know, pre Comstock, but under Comstock and sort of anti obscenity laws, it is. It is truly wild. So Comstock is passed literally in response to a woman's speech in order to.
- [46:26]
Reva Siegel
Stop talking, like, just talking.
- [46:28]
Leah Lippman
Talking about equality, talking about sexual liberation. But maybe just talking would have been enough. So response to a woman's speech in order to stifle women's speech because existing laws were not sufficiently robust to do enough stifling. And of course, it is passed by a Congress, as you write, from which women were barred. There are, of course, no women in the Congress that passes Comstock. Among other things, Comstock criminalizes birth control at a time when women are legally unable to refuse sex in marriage. But to stay on the speech piece of this for a moment, Comstock, after it is passed, is enforced to target speech of the type that Woodhull was engaging in, but also to stifle criticism of the law itself. And that is in some ways one of the most dystopic pieces of the story you tell. So, Mary, can you say a little bit more about this? So, like, how was Comstock used both to suppress the speech of women and activists, but also to shield Comstock itself from public critique?
- [47:26]
Mary Zigler
Yeah, I mean, this kind of gets to the puzzle of, like, how the hell would you enforce this thing? Right? I mean, they didn't have good surveillance tools, you still had to get a warrant to open people's mail. And the answer was you selectively enforce it. Right. So when people would say the Comstock act is, you know, religious tyranny, or the Comstock act is the suppression of civil liberties, or the Comstock act is the suppression of women, those people put a big target on their back and they tended to be the people who got prosecuted. So many of the kind of high profile cases that came in the 1870s and 1880s were people that Comstock was making an example of. Right. And the idea was to shut down as obscene. Not just discussion of abortion and contraception or discussion of sex or discussion of the human body in medical textbooks, but also discussion of the Comstock act as obscene. And that that really made it hard for anyone to demand reform or repeal of the law in any kind of effective way without putting that target on their back for decades after and really even longer than that after the law was passed.
- [48:30]
Leah Lippman
So, Mary, you already kind of started gesturing toward this in what you just said. But beyond speech specifically about combat, what other sorts of speech was Comstock used to police?
- [48:41]
Mary Zigler
All kinds. Right. So it got truly ridiculous at various points. So lots of famous works of literature came under Comstock scrutiny. So things like, you know, really titillating works like the Decameron by Boccaccio or like Jeffrey Chaucer's Canterbury Tales, don't let your kids near that stuff. It's pretty on. And medical textbooks. There were even at one point, one of our favorite stories was that people in societies for suppression of vice who were charged with arresting and investigating people for vice would get arrested for reporting to fundraising people and donors that they were arresting people for these things because then they were acknowledging that they existed. Right. So the scope of it was pretty underdetermined and kind of got wild after a while. While it was also interesting to us, what wasn't being targeted. You had court after court saying we wouldn't go after a doctor communicating with a patient. We wouldn't go after doctors communicating with doctors. So there seemed to be some sort of health exemption from the very beginning that even Anthony Comstock acknowledged. Like he, in 1915, which was the year he died, gave an interview to Harper's Weekly where he said he didn't want to go after doctors protecting the life of patients, only quacks. Right. Which. Whatever that means. But there. There was a sort of. Seemed to be a gray area where health was involved that we found really interesting.
- [50:03]
Leah Lippman
So you're saying that now the anti choice movement has taken it further than Anthony Comstock in resisting exemptions for the life and health of patients. Great. Awesome.
- [50:12]
Mary Zigler
One million percent. One of the people who are Comstock revivalists, we call them, says Anthony Comstock was like Batman. But if Anthony Comstock was Batman, these people are 1. Upping Batman, like it's, it's definitely, definitely more severe.
- [50:24]
Reva Siegel
But what about the history and tradition? I'm confused. Just putting a pin in that.
- [50:29]
Leah Lippman
We will return to it. But I actually wanted to ask Mary about something that you just referenced, these anti vice societies, because it ties back to the corruption piece that we started with. So what were these, just briefly, these anti vice societies, am I right that they were. There were these kind of bounty hunters and Comstock was actually getting financial payouts for some of these prosecutions. Can you explain how all that worked?
- [50:51]
Mary Zigler
Yeah, there was this sort of weird public private partnership that Reeva and I identified. So the societies for the suppression advice were just like private citizens working with people like Comstock and his cohort, like in the West, R.W. mcAfee. And the. The Comstock act actually, as it was originally envisioned, actually allowed Comstock to collect bounties. So when you were arrested for violating the Comstock act, you got fined and Comstock and McAfee got a percentage of those fines. So they were incentivized to arrest people and they outsourced some of this work to other private citizens who would catfish people. Essentially they would pose as the husbands or fathers of women seeking contraception or abortion, sometimes even as the women themselves to try to collect on these bounties. So there was definitely no corruption involved.
- [51:35]
Leah Lippman
I mean, this just feels like the Rosetta Stone of all of the kind of most extreme pathologies of sort of the right wing kind of legal movement at the moment. It all traces back to Comstock and the historical history that you provide in this paper. So we've been sort of focused on the speech aspect of Comstock. And to be very, very clear, all of the enforcement actions that we are talking about would be wildly unconstitutional under current conceptions of the First Amendment. And the enforcement, as you have just described, profoundly distorted the democratic process, which is part of the answer to the question that I think some people have, which is how in God's name is this law still on the books? Well, it turns out that the law itself contained the tools of its own kind of survival because it suppressed the democratic process that might have resulted in its repeal. But let's maybe now turn to the use of the law to police, as Melissa referred To earlier, not just speech, but also intimate life. Right. To enforce this sexual purity mandate. And you said, Mary, that, you know, there were some obstacles to enforcement just at the front end in terms of, like, a warrant requirement to get into people's homes. But the law was definitely used to target those who advertised or mailed things like birth control. So, you know, maybe if you want to talk a little bit about that and then to say a little bit more about what you already alluded to, which is that there actually were limits on the law that were more complex than some revivalists kind of vision of the Comstock act would suggest. So. So can you just talk about both enforcement and the limits on enforcement?
- [53:02]
Mary Zigler
Yeah, so there was definitely an effort to enforce the law against, particularly people who advertised abortion and contraception, doctors who held out that they were doing this, people who were known in the community to provide these services. Again, it wasn't consistent. There were also a lot of people who had turned the law against people they didn't like, like business competitors, neighbors, women who refused their sexual advances. Like, it was really weaponized by neighbor against neighbor as well. And courts at the height of this thing essentially were willing to sign off on a lot of prosecutions when they believe sexual purity is at stake. And what they meant by that was not that the law was focused on protecting fetuses. They meant that the availability or even information about abortion and contraception would lead people to have sex that Anthony Comstock thought they shouldn't have. Right. Because then they wouldn't get in trouble or get pregnant. Even then the courts thought there were limits. Right. They would say, well, we're here to prevent this bad sex. We're not here to ensure that people are going to die of pregnancies that are unsafe. So there were always. There was lots of moments where courts would pause and say, of course, it would be different if this defendant had been communicating with an existing patient rather than someone that they're trying to get to engage in a commercial relationship with or writing a book to the whole world, or advertising in the New York Post. So we were surprised by that and interested to see that what people are trying to make this law mean now is way more draconian than even what it meant in the Victorian era.
- [54:33]
Kate Shaw
The other piece is that the statute refers to procuring of abortion or producing of abortion, and that's a crime with intent. And so it comprehended some kind of health exception, which in actually two different contexts, we've played out as really pretty expansive, and deferring to medical Discretion in a lot of ways, we don't need to go into the details, but not like the chill doctor regime that we have going now. So there's. As Victorian as this world was, it still had important differences from our own.
- [55:10]
Leah Lippman
So can we kind of talk about the growing resistance to Comstock? Riva. So part of the story is, right, the resistance to Comstock by suffragists and early feminists, including through acts of widespread civil disobedience.
- [55:23]
Kate Shaw
So people living in the 19th century, or maybe in some respects different in expectation, but they're not so different from us, then this did not go down well. It's a simple way of summing all of this. There was resistance right from the beginning, but the more extreme the prosecutions got, and they did, the more it began to provoke kinds of mockery. Even George Bernard Shaw staged a play in New York that was shut down by Comstock, and he started talking about Comstockery. And that's where the title of our paper came from. And we have actually remarkable engram that shows how the usage escalates with social protest. So there it begins to be sort of a cultural position to start mocking this idea of sexual wrongdoing.
- [56:13]
Leah Lippman
They called it weird, right? They called Comstock weird.
- [56:16]
Rebecca Nagel
Weird.
- [56:16]
Kate Shaw
Exactly. Exactly. And so. And also, there's like a new generation of suffrage. If, you know, at the beginning, there was some sense that to even assert a claim for the vote, you're already out there and in disrepute. By the 20th century, there was a very strong sense that a demand for equality was not merely a demand for a civil right, but for a new form of life that really affected many domains, the idea of work and family and more. And so the younger generation of suffragists joined with civil libertarians and basically arts communities and whatnot, and began to assert arguments without the vote. And the way they made themselves heard was through civil disobedience and what today we might call conscience and law breaking. They essentially just started busting the Comstock law and getting themselves arrested and producing trials that drew enormous amounts of newspaper coverage. So they were actually media savvy. They knew how to make a scene, and they made scenes, and the papers covered the scenes. And so they created speech scenes, basically, about the injustice of the state criminalizing and controlling political speech, and the state criminalizing and controlling people's private sexual and reproductive lives. And so what you see out of this reaction, this backlash to this hyper form of surveillance regime, is the birth of something more modern. And even if you want to think about it this way the roots of our modern understandings of our constitutional democracy in this very ground up kind of resistance to Comstock. So that part of the paper has been a really exciting piece of the story to excavate. And it's really got characters who are known and characters who are not even known, whose stories and her ways of claiming who we are are really exciting to add back to our story of where we came from.
- [58:21]
Reva Siegel
So the history that you all have sketched is really interesting. And again, as Leah said, there are lots of ways in which they sort of gesture toward the current Supreme Court. So, Mary, when you mentioned the public private partnership, I was thinking about Justice Thomas and his public private partnerships with.
- [58:37]
Leah Lippman
His emotional support billionaires. But I'm more the Texas SBA bounty hunters. Right?
- [58:42]
Reva Siegel
There's just like so much the sexist.
- [58:45]
Mary Zigler
Espionage bounty hunters is the same people like, they saw. They saw that too. They're like, leah is smart. That's a good idea.
- [58:51]
Rebecca Nagel
They would have.
- [58:51]
Mary Zigler
They already thought of it.
- [58:53]
Reva Siegel
So here's my question, though, and I gestured toward it earlier. The history and tradition, which so many conservatives are absolutely obsessed with as a method of judicial interpretation and constitutional interpretation, seems to suggest in this case that something like Comstock ought not be used in this moment to put police sexual life. Like the history that you sketch suggests that those were not the original purposes of this statute. I mean, it may have morphed into that, but it was actually used in more confined ways. And they're actually overshooting Comstock and kind of going beyond the history of this particular text. So can you say a little bit about the Dobbs majority opinion, its insistence on history and tradition, its reliance on that appendix where the majority lists the state laws that prohibited abortion or they say prohibited abortion, and thus show that there was no history and tradition of recognizing a right to abortion. What does your project show about relying on statutes alone as a reflection of what the landscape looked like historically at any given moment in time?
- [60:06]
Kate Shaw
Well, when I first finished reading Dobbs, I was so outraged that he had decided to Justice Alito had decided to narrate the history and tradition of the country with such a focus on statutes enacted at a time when the majority of women and people of color could not participate in the electoral process in this exclusionary way that the end of that paper called for democratizing memory, which is to say, including in our story of history, the nation's history and tradition, the voices of people we think might have been unjustly excluded from saying who it is we are. And in Doing that, I was certainly summoning the work of Peggy Cooper Davis and others who tried to speak more capaciously about where the Reconstruction Amendments came from and the experience of people of color enslaved and freed, that ought to inform the way we involved forced them. And so one can think about this paper as having two different images of what our history and tradition is. Is it Comstock, the statute? At least Comstock the statute is enacted in the 19th century whose meaning still doesn't map on to what the revivalist today says it means? A or B? Is it the story of all of those Americans who denied a voice its enactment, nonetheless stepped forward and tried to speak about what it is that government should be doing in people's lives? And what we do show in this paper is that the voices of those Americans did move. If they couldn't move the legislature, they did move. Federal judges who did shift in the way they interpret obscenity under the Comstock statute in the 1930s, and that balance between obscenity and health that Mary was talking about earlier shifts in such a way as to protect speech about sex and also access to contraception and actually to abortion in the males. And judges who grew up in that world with those conflicts were the judges who in the Warren Court gave us a new First Amendment around the subject of obscenity and also the 14th Amendment, even if they never mention this history in it.
- [62:30]
Leah Lippman
So that transitions to final question. Reva, briefly, could you tell us how Comstock appears and disappears in the Court's GRISWOLD DECISION? Griswold vs. Connecticut is of course, the decision invalidating a contraception restriction and Griswold's precursor, Poe vs. Ullman.
- [62:46]
Kate Shaw
Well, we should just make clear there's a connection between the two. Connecticut had a statute we call columns mini Comstock statutes that were enacted in the era of Comstock. This one actually banned the act, as opposed to only mailing information and items. And when the Court went to deal with it, first it balked. That's Poe. And then it addressed the merits. And in oral argument, there's actually robust discussion in Griswold of the Comstock history. And actually, the Court assures itself that there's a technical difference between the two statutes, meaning it's not deciding exactly the same question and dealing with the act in Connecticut, and decides to write the opinion, never mentioning the 1930s cases. But I want to make clear that the constitutional decision is in deep spiritual alignment with the 19th 30s cases. And it happens before the contraceptive provisions were ever removed.
- [63:51]
Leah Lippman
So that decision is in deep alignment with the resistance to Comstock, and the decision is fundamentally irreconcilable with Comstock itself, as these revivalists want to bring it back to life. Comstock cannot be enforced consistent with current constitutional understandings, but they want to tear all of those down. That is the point. And this history, I think, really illustrates how wildly dangerous it would be to return us to the place they want us to go. The article, once again is Comstockery. It is a truly chilling account of a law that should not be, but is at the heart of debates we are having right now about what our future will look like. Give it a read. If it makes you angry, mobilize in response while you still can without being thrown in jail. And thanks so much Professors Reva Siegel and Mary Sigler for the wonderful paper and for being with us today.
- [64:35]
Mary Zigler
It's been a pleasure. Thanks.
- [64:36]
Kate Shaw
Great to be here.
- [64:37]
Leah Lippman
One important note before we go. There's only one day left until National Voter Registration Day and we're so close.
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Kate Shaw
To helping Vote Save America reach their.
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Leah Lippman
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Kate Shaw
Go either way and every action between now and Election Day will make a difference.
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Leah Lippman
Vote Save America needs you to step.
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Kate Shaw
Up and help elect Vice President Kamala Harris as our Next President.
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Leah Lippman
With VoteSave America America, you can take.
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Kate Shaw
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Leah Lippman
Wishing you'd done more. Go to votesafeamerica.com 2024 to get started.
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Kate Shaw
If you've already signed up. Spread the word. We need all hands on deck. This message has been paid for by Votesafe America. You can learn more@votesaveamerica.com and this ad has not been authorized by any candidate or candidates committee.
- [65:32]
Reva Siegel
Strict Scrutiny is a crooked media production hosted and executive produced by Leah Lippman, Melissa Murray and Kate Shaw with production and editing support by Melody Rowell, audio support from Kyle Secklin and Charlotte Landes, and music by Eddie Cooper. We get production support from Madeline Haringer and Ari Schwartz. And if you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast apps. You never miss an episode and if you want to help other people find the show, please rate and review us. It really helps. What's causing the Rise in Book Banning on the second season of the MSNBC podcast Velshi Banned Book Club, Ali Velshi speaks with authors of Ban Books to try and find out. This season features new literature and authors including Tim O'Brien, Jacqueline Woodson, Roxane Gay, Lois Lowry, Stephen Chomsky and more. Just search for Velshi Banned book club to follow and listen to the series. New episodes drop on Thursdays.
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