Strict Scrutiny Podcast Summary: Episode - "The Battle for Native Rights & Comstock: The Zombie Law From Hell"

Introduction

In this compelling episode of Strict Scrutiny, hosted by constitutional law professors Leah Litman, Kate Shaw, and Melissa Murray from Crooked Media, the discussion pivots around two pivotal topics: the enduring struggle for Native American rights and the chilling revival of the Comstock Act. Released on September 16, 2024, this episode delves deep into Supreme Court cases affecting Indigenous sovereignty and examines the historical and contemporary ramifications of anti-vice legislation.

Part 1: The Struggle for Native Rights

Interview with Rebecca Nagel

Rebecca Nagel joins the hosts to discuss her new book, By the Fire We Carry: The Generations Long Fight for Justice on Native Land. Nagel, renowned for her award-winning podcast This Land, offers an extraordinary blend of journalism, history, memoir, and legal analysis, focusing on the forced removal of Native peoples and the legal battles culminating in the Supreme Court's affirmation of Native land rights in 2020.

• Indigenous Rights and Democracy

  Nagel articulates the intrinsic link between Indigenous rights and the health of American democracy. She states, “The legacy of colonization is not just a problem for Indigenous peoples, but a problem for our democracy” (03:20). She emphasizes that Indigenous rights act as a “canary in a coal mine” for broader democratic vulnerabilities.

• Historical Context of Forced Relocation

  The conversation highlights the Trail of Tears as a genocide that has been inadequately addressed in public discourse. Nagel criticizes the lack of governmental reckoning, noting, “We have never had a public process where we take account for that, but also reform our government and our democracy” (05:53).

• Case Study: McGirt v. Oklahoma

  Nagel explains the significance of McGirt v. Oklahoma, where the Supreme Court upheld the reservation of the Muskogee Nation, impacting over 60 million acres. She remarks, “This time the court held the law, and this time the court followed the law” (25:02), underscoring it as the largest restoration of tribal land in U.S. history.

• Supreme Court's Role and Backlash

  The episode examines the immediate backlash following the McGirt decision, particularly through the Castro Huerta case. Nagel criticizes the court's deviation from precedent, stating, “It's one of the weirdest and sloppiest opinions I've ever read” (25:30), highlighting a troubling trend of courts bending laws for political reasons.

• Jurisdictional Challenges and Legal Contradictions

  Nagel discusses the inherent contradictions in federal Indian law, quoting Justice Clarence Thomas who labeled it "schizophrenic." She asserts, “Federal Indian law isn't all good or all bad. It's the totality of that” (33:46), emphasizing the ongoing need for vigilance and advocacy to protect tribal sovereignty.

Part 2: The Comstock Act – History and Revival

Interview with Reva Siegel and Mary Zigler

In the latter half of the episode, Nagel is joined by legal scholars Reva Siegel of Yale Law School and Mary Zigler of UC Davis School of Law to discuss the Comstock Act, an 1873 anti-vice law criminalizing the transmission of obscene literature and articles of immoral use through the U.S. mails.

• Origins and Enforcement of the Comstock Act

  The hosts trace the inception of the Comstock Act to Anthony Comstock’s crusade against obscenity, motivated by his personal struggles with sexuality. Siegel elaborates, “He believed that illicit sex was destroying the nation” (41:36), highlighting Comstock's influence in pushing the Act through Congress.

• Suppression of Speech and Sexual Freedom

  Zigler explains how the Comstock Act was weaponized to suppress both the speech advocating sexual liberation and the critique of the law itself. “They discreetly targeted anyone who criticized the law by labeling their speech as obscene” (47:26), she notes, illustrating the Act’s oppressive reach.

• Public-Private Partnerships and Corruption

  The discussion reveals the corrupt alliances between anti-vice societies and Comstock, where fines from prosecutions financially benefited Comstock. Mary Zigler states, “They were incentivized to arrest people and outsourced this work to private citizens who would catfish individuals” (50:50), exposing the law’s exploitative mechanisms.

• Modern Revival Efforts and Dangerous Legacies

  The scholars emphasize the alarming attempts by right-wing groups like Project 2025 to resurrect the Comstock Act. Mary Zigler warns, “Reviving the Comstock Act today is like slamming the brakes on progress that already feels painfully retrogressive” (50:12), underscoring the Act’s relevance to current reproductive rights battles.

• Resistance and Cultural Pushback

  The episode highlights historical resistance to the Comstock Act, linking it to early feminist and civil libertarian movements. Kate Shaw recounts how suffragists used civil disobedience to challenge the law, noting, “They created speech scenes about the injustice of the state criminalizing and controlling political speech” (55:23).

• Impact on Modern Legal Landscape

  Siegel and Zigler discuss the inflexible interpretation of statutes by the Supreme Court, drawing parallels to the Dobbs decision. Kate Shaw critiques, “The majority lists state laws that prohibited abortion... but those laws don't map onto the revivalist vision of Comstock” (63:52), reflecting on how historical misinterpretations fuel contemporary legal threats.

Conclusion

This episode of Strict Scrutiny skillfully intertwines the historical and present-day struggles for Native American rights with the resurgence of outdated and oppressive laws like the Comstock Act. Through insightful interviews and detailed analysis, the hosts illuminate the ongoing battles within the U.S. legal system, emphasizing the critical need for informed advocacy and judicial accountability.

Notable Quotes:

• Rebecca Nagel (03:20): “The legacy of colonization is not just a problem for Indigenous peoples, but a problem for our democracy.”

• Rebecca Nagel (25:02): “This time the court held the law, and this time the court followed the law.”

• Reva Siegel (41:36): “He believed that illicit sex was destroying the nation.”

• Mary Zigler (50:50): “They were incentivized to arrest people and outsourced this work to private citizens who would catfish individuals.”

• Kate Shaw (55:23): “They created speech scenes about the injustice of the state criminalizing and controlling political speech.”

Final Thoughts

Strict Scrutiny offers a profound exploration of pivotal legal issues shaping American society. Whether you're a legal professional, a student, or an engaged citizen, this episode provides invaluable insights into the intersections of law, culture, and human rights.

For more discussions on Supreme Court cases and their societal impacts, subscribe to Strict Scrutiny on your preferred podcast platform and stay informed on the legal battles that shape our daily lives.