The Era of Democratic Dissatisfaction

Guest Blogger

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

Richard H. Pildes 

            We live in an Era of Democratic Dissatisfaction.  Over the last 10-15 years, large numbers of citizens have been continuously expressing discontent, distrust, alienation, anger and worse with governments across nearly all Western democracies, no matter which parties or coalitions are in power.  One expression of this dissatisfaction is that democratic governments have become more fragile and unstable.  In just the past couple years, the governments in Germany, France, Portugal, the Netherlands, and Canada have collapsed prematurely, forcing those countries to hold snap elections.  Spain has been forced to hold five general elections in the last ten years, in the search for a stable governing majority; for the same reason, the U.K. held four national elections from 2015-2024 and might well be careening to another one, long before the presumptive five-year term for the current government comes to an end.

            Across nearly all Western democracies, many citizens have come to feel their systems are no longer delivering for them on the issues they care most urgently about.  Four aspects of the way political competition and governance is being transformed as a result illustrate the turbulence of democracy in this era.  First, the traditional center-left and center-right parties that had dominated politics in nearly all these countries since World War II have been collapsing.  When these parties were strong, they were able to form governing majorities either on their own or with one junior partner; as a result, government could more readily deliver on the preferences of electoral majorities.  Second, the voters these parties have been hemorrhaging have moved to insurgent and more extreme parties of the left, right, or more difficult to characterize ideologies.  But it is the new right parties, in particular, that have emerged most significantly as an alternative to the traditional parties and political leaders (the Reform Party in the U.K., the National Rally in France, the AfD in Germany, the Brothers of Italy, the Chega in Portugal, the Party for Freedom in the Netherlands, the Finns Party in Finland, the Progress Party in Norway, the Sweden Democrats, and others).  Across 27 European countries, these new right parties barely registered in 2010, but remarkably now in the aggregate attract the same vote share as the traditional center-left and center-right parties.

Conscientious Objection and Anthropic

Guest Blogger

Skowronek on American Democracy: Gridlock, Presidentialism, and Democratic Faith

Guest Blogger

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

Andrea Scoseria Katz

Having read several earlier versions of Stephen Skowronek’s The Adaptability Paradox, I was struck by the book’s preface, with this arresting new ending: 

This book is going into production just as a new administration is about to take charge. The elections of 2024 have brought our constitutional institutions into a highly charged partisan alignment, and detailed plans for a thoroughgoing shake-up are already in hand. [T]he following pages offer a view from the precipice. Next steps are ripe with hazard. The outlook is frightening. But we did not arrive here suddenly. The situation at hand did not arise out of the blue. The Adaptability Paradox is about how we reached this point. 

At the time those words were written, Donald Trump had already organized a failed electoral coup, twice been impeached, faced multiple criminal charges and numerous civil lawsuits—and been reelected to the nation’s highest office. Even this gave little sense of what lay ahead. Just one long and chaotic year into his second term, Trump has gone further than any other president in using his formal authority to cripple, politicize, and weaponize the power of the federal government. He has emptied out whole agencies, prosecuted political enemies, strongarmed universities and the legal profession into compliance with his agenda, set a federal police force against American citizens, started a unilateral war of choice, and bid to interfere with the upcoming midterm elections. 

How, as Skowronek asks, did we reach this point? The Adaptability Paradox has much to say about Trump’s causes, and his consequences.

Politics and Legal Arguments Can Coexist: a Reply to Drall and Moyn

Guest Blogger

Paul Gowder

Constitutional practice, whether in the courtroom or in the academy, has lots of problems, but one of the main ones is dealing with its dual character as law and politics. Perhaps that’s a controversial claim—certainly it would be controversial to a pure legal realist or an attitudinalist across the hall in political science. I guess it might be controversial to a classical formalist too, but I’m not convinced any of those still exist.

Outside those fairly small groups, I take it that we mostly agree that constitutional law is political in virtue of the following two features (at least):

(1.a) The outputs are influenced by politics. That is, judges’ and justices’ decisions depend in part on their ideology; and

(1.b) The inputs are influenced by politics. That is, the legal arguments that advocates make are influenced by, among other things, social movement advocacy, doctrinal entrepreneurship (the most famous recent example, which Drall and Moyn discuss at length, being the surprise impermissibility of ordering people into commerce), and extended programs of strategic advocacy and theory-building motivated by political goals, whether carried out by Charles Hamilton Houston, Ruth Bader Ginsburg, or Leonard Leo.

I take it that we also mostly agree that constitutional law is legal in virtue of the following four features:

Constitutional Democracy in Crisis? II TOC

Mark Graber

The final version of the second edition is now at Oxford University Press.  We have amazing chapters and authors.  The most comprehensive study of democratic decline and resilience throughout the world.  Much thanks to Mark Tushnet, Sandy Levinson, and Antonia Baraggia for their editorial help.  All publicity is good.  TOC below.

CONSTITUTIONAL DEMOCRACY IN CRISIS? II

TABLE OF CONTENTS

1.     Antonia Baraggia, “Introduction,”

PART ONE: BACKGROUND

2.     Keith E. Whittington, “Defining Constitutional Crises”

3.     Zachary Elkins, “Is the Sky Falling? Constitutional Crises in History Perspective”

4.     Tom Ginsburg and Aziz Z. Huq, “Defining and Tracking the Trajectory of Liberal Constitutional Democracy”

5.     Laura Gamboa, “Democratic Resilience in the 21^st Century”

6.     Kim Lane Scheppele, “The Frankenstate, Revisited”

7.     Mark Tushnet, “Proto-Authoritarianism and Abusive Constitutionalism”

PART TWO: COUNTRIES

8.     Vicki C. Jackson, “Knowledge Institutions and Constitutional Democracy’s decline: a U.S. Case Study”

9.     Mark A. Graber, Mark Tushnet, Sandy Levinson, and Antonia Baraggia, “Letters from the Editors: Democratic Decline in the United States”

10.  Emily Zackin, “Constitutional Democracy and the U.S. States”

11.  Mariana Velasco-Rivera, “Understanding Mexico’s Democratic Decline”

12.  David Landau and Raul Sanchez-Urribarri, “Courts and Constitutions in an Evolving Autocracy: Venezuela”

13.  Marcela Prieto Rudolphy and Sergio Verdugo, “Not a Zombie Constitution: Limited Resilience and Chile’s Unfinished Constitutional Journey”

14.  Emilio Peluso Neder Meyer, “Brazil: Between Erosion and Collapse”

15.  Erin F. Delaney and Julie E. Smith, “The UK Constitution: Parliament on the Precipice”

16.  Nicoletta Perlo, “When Democracy Bleeds: Constitutional Rot in France”

17.  Monica Claes and Joost Sillen, “Guardrails under Strain: the case of the Netherlands”

18.  Michaela Hailbronner and Felix Oldenberg, “Right-Wing Extremist and Militant Democracy in Germany”

19.  Victor Ferreres Comella, “Constitutional Crisis in Spain: The Rise and Fall of Catalan Secessionism”

20.  Giuseppe Martinico, “Is Italy a Case of Constitutional Democracy in Crisis?”

21.  Wojciech Sadurski and Anna Wójcik, “Constitutional Crises in Poland: An Uneasy Pathway to Democratic Restoration”

22.  Jens Woelk, “The Western Balkans: ‘Stabilitocracy’ or Democratic Transformation?”

23.  Yaniv Roznai and Noam Gidron, “Israel – Populism, Polarization and the Crisis of Democracy”

24.  Francesco Biagi, “Tunisia: The Illiberal Populist Project of an Unconstitutional Constitutional Scholar”

25.  Rabiat Akande, “Constitutional Democracy in Crisis? A View From Nigeria”

26.  James Thuo Gathii, “Kenya’s Debt Induced Constitutional Crisis: 2023-25”

27.  Penelope Andrews, “Constitutional Crisis or Mere Growing Pains: Reflections on 30 Years of South African Democratic Constitutionalism”

28.  Madhav Khosla and Milan Vaishnav, “India after Democracy”

29.  Geser Ganbaatar, “Democratic Backsliding in Mongolia”

30.  Keigo Komamura, “The Death or Reincarnation of the Constitution of Japan: A Nation of ‘Constitutional Change Without Amendment”

31.  Chien-Chih Lin, “Constitutional Crisis in Taiwan: Domestic Factors, External Factors”

32.  Joel Colón-Ríos and Sir Geoffrey Palmer, “New Zealand: An Exception to Democratic Decline?”

33.  Rosalind Dixon and Anika Gauja, “Australia’s Non-Populist Democracy? The Importance of Electoral Design & Institutional Adaptation”

PART III: CHALLENGES

34.  Thomas M. Keck, “Free Speech, Constitutional Democracy, and Democratic Backsliding”

35.  Yasmin Dawood, “Electoral Resilience and the Democratic Governance Model”

36.  Jeff King and Octávio Luiz Motta Ferraz, “Health Emergencies and Democratic Erosion: did the Covid-19 pandemic help autocratization?”

37.  Bojan Bugaric, “When Populism Meets Neoliberalism: Constitutional Order in Crisis”

38.  Susan-Rose Ackerman, “Kleptocracy and Corruption’s Impact of Democracy”

39.  Kamala Sankaran, “Identity and Constitutional Design”

40.  Ayelet Shachar, “The Inversion Paradox: Majorities Taking on the Minority Label”

41.  Sanford Levinson, “Reflections on Secession—and World Government”

42.  Ran Hirschl, “A Constitutional Crisis of Scale”

PART IV: CONCLUDING OBSERVATIONS

43.  Ming-Sung Kuo and Hui-Wen Chen, “Finding the Place in Constitutional Democracy”

44.  Mark A. Graber, “Navigating the Pluralist Autocracy Challenge to Contemporary Constitutional Democracy”

The Avoidant Constitution?

Guest Blogger

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

Noah A. Rosenblum

*

The Adaptability Paradox raises a profound and challenging question about the way the Constitution works. Steve uses that question to retell the history of American government as the shift between a series of different settlements, which has only recently broken down. I wonder, though, whether the book suggests a different historical account, one that emphasizes not consensus, but dissensus. In this way, his book points us towards a new approach to Constitutional theory—and new historical and political projects that would go with it.

The New American Adaptability Paradigm: Empire or Federation?

Guest Blogger

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

Rogers M. Smith 

Stephen Skowronek’s The Adaptability Paradox: Political Inclusion and Constitutional Resilience is grimly persuasive. The U.S. Constitution proclaimed that “We the People” would govern. But it won adoption only by also tacitly promising that the interests of the most powerful among the people, especially the propertied, land-hungry, often slaveholding white Christian men who led the American Revolution and designed its new political system, would not be disrupted, would more likely be protected and advanced. The original promise of popular self-governance has fueled pressures for changes in that system all through its history, and major changes have come--some through constitutional amendments, most notably those of Reconstruction, banning enslavement and racial disfranchisement, some through fundamental additions to the original institutional arrangements, most notably the modern administrative state, devoted to economic regulation, some redistribution, and civil rights. But those democratizing adaptations gained the limited success that they have had because they were accompanied by new protections for powerful interests. Jim Crow laws and practices sheltered the white landholders of the South up through the New Deal. Business corporations have benefited from their secure representation among the experts serving as administrative regulators up through the present day.

Now, with Americans across the spectrum angry at political, economic, and administrative elites, demands for democratization are testing the adaptability and resilience of the American constitutional system perhaps more than ever before—because now the demands are on behalf of diverse groups of Americans wide enough to encompass virtually the entire nation, making the threats to powerful interests, and the institutions that protect them, greater than ever. It is not clear that the kind of auxiliary institutional adjustments or even amendments that in the past sufficed for adaptations, bracketed by much continuity, can do the job this time. So, Skowronek concludes, “a fundamental reassessment of our basic governing arrangements might finally be in order.”

“Adaptability” as a constitutional norm (and problem): Reflections on a Skowronekian Constitution

Sandy Levinson

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

There is much that one can say about Stephen Skowronek’s important new book, which I read in manuscript and immediately began assigning, in part, to courses I taught on reforming the United States Constitution at the Harvard Law School.  One of its many virtues is its accessibility to all potential audiences.  It deserves a wide readership and, more to the point, discussion.  What I want to do here is to focus very closely on the title of the book:  The Adaptability Paradox:  Political Inclusion and Constituitonal Resilience.  The “paradox” he points to suggests some very disturbing features of American constitutionalism from its outset to the present day.

Birthright Citizenship and the Politics of Constitutional Law (Part III)

Guest Blogger

Pranjal Drall and Samuel Moyn

Our first two posts have analyzed how marginal legal positions are politically mainstreamed and surveyed that normalizing process in the great case on birthright citizenship, Trump v. Barbara, so far.

Before long, even those who thought the government’s position was laughable or dishonest end up arguing over the “true” meaning of the 1866 Civil Rights Act, whether it is appropriate to use private letters, and whether the holding in Wong Kim Ark included a domicile requirement. The open rage and the strategic awareness, visible on social media, are filtered out by the time the arguments reach the merits stage. Of course, they are professionally impermissible in oral argument. That is what legalism, pretending the law already resolved the dispute even as it is being pushed somewhere new, requires.

The benefits of liberal and left engagement in this manner are unclear, and their downsides stark. We seem to forget that the revisionists do not need to win the argument cleanly. They just need the argument to be plausible and liberals, by responding to the argument on legalist and originalist terms, make it easy for the Supreme Court to treat it as an open question.

The NFIB experience might have taught liberals that ridicule and disbelief are not winning strategies. The individual mandate challenge did not succeed or fail based on the quality of legal argument. It turned on political dynamics that determined which readings of the Commerce Clause were conceivable and credible. If that is also true for the Citizenship Clause, then academics ought to openly discuss whether it makes sense to engage on originalist terms at all, whether to call out the revisionism as a political project rather than a scholarly one, and whether to attack the good faith of the elite legal actors on the other side pretending otherwise.

Those are strategic judgments with difficult tradeoffs. The normalization of your enemy’s argument might happen anyway, and it could shift the right left as much as it shifts the Constitution right. And perhaps this mode of engagement is strategically necessary because current judges ultimately need to be supplied “originalist” arguments for birthright citizenship. But treating routine engagement on the merits as the only option, without even acknowledging the choice, is the mistake liberals made in NFIB and are making it again here, even if this particular mainstreaming effort is likely to fail. Doing so requires collusion on interpretive method, which moves our jurisprudence to the right, and may be extremely ill-advised if it obscures other options that are far less costly or more viable or both.

Too Much or Too Little Adaptation?

Guest Blogger

Balkinization Symposium on Stephen Skowronek, The Adaptability Paradox

JB

This week at Balkinization we are hosting a symposium on Stephen Skowronek's new book, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

We have assembled a terrific group of commentators, including Elizabeth Beaumont (UC Santa Cruz); Nikolas Bowie (Harvard); Andrea Katz (Washington University), Jeremy Kessler (Columbia), Sandy Levinson (Texas), Robert Mickey (Michigan), Rick Pildes (NYU), Noah Rosenblum (NUY), Rogers Smith (Penn), and Emily Zackin (Johns Hopkins).

At the conclusion, Steve will respond to the commentators.

Birthright Citizenship and the Politics of Constitutional Law (Part II)

Guest Blogger

Pranjal Drall and Samuel Moyn

The obscure prehistory of the campaign against birthright citizenship by itself suggests that the dynamics of credible legal interpretation are political in nature.

The revisionist case started with Peter Schuck and Rogers Smith, Yale professors who published their book Citizenship Without Consent in 1985, contending that the Fourteenth Amendment’s phrase “subject to the jurisdiction thereof” left room for Congress to decide whether the children of unauthorized immigrants are constitutionally guaranteed birthright citizenship. The book was widely ridiculed, rejected by Congress, and dismissed by the Office of Legal Counsel.

For three decades, the same basic legal argument failed to gain traction because no political coalition existed to carry it forward. White supremacists Wayne Lutton and John Tanton used the Schuck and Smith book as evidence that scholarly opinion supported overturning birthright citizenship without a constitutional amendment. The Social Contract, a magazine run by Lutton, published several articles pushing the argument during the 1990s. Rep. Bilbray of California, who would later co-chair the Federation for American Immigration Reform (FAIR), introduced a bill in 1995. The House Immigration Reform Caucus was established in 1999 and had 11 members. By 2005, membership had grown to 95 members but it was still unsuccessful in trying to force a vote on legislation to revoke birthright citizenship.

Although a few lonely stalwarts kept interpretive history alive on the margins, there was no institutional infrastructure or elite political constituency to convert that demand into a credible constitutional claim. John Eastman, who later led the legal effort to overturn the 2020 election, kept building the academic case alongside Edward Erler. They pushed the argument—that the Citizenship Clause required “complete” political allegiance, not mere territorial presence—in law reviews, Heritage Foundation white papers, Federalist Society debates, and in op-eds. Eastman even brought this argument to the Supreme Court in Hamdi v. Rumsfeld in 2004. Yet Justice Scalia disposed of it in passing, calling Yaser Hamdi, born in Louisiana to parents with temporary visas and later captured fighting against the United States in Afghanistan, “a presumed American citizen.” The issue was still live enough that Senator Schumer pressed Justice Alito on the Citizenship Clause during his 2006 confirmation hearing. Rep. Nathan Deal introduced a bill in 2009 that attracted 95 co-sponsors. In 2011, Republican state lawmakers in Arizona, Oklahoma, Georgia, and Pennsylvania introduced bills designed as test cases for the Supreme Court. But these efforts did not materialize and to our knowledge not a single bill was actually voted on.

Birthright Citizenship and the Politics of Constitutional Law (Part I)

Guest Blogger

Pranjal Drall and Samuel Moyn

There they go again. The litigation over Donald Trump’s executive order ending birthright citizenship has so far followed a familiar script. And liberals, especially lawyers among them, have played their appointed role, as if there were no other—even in the age of an openly reactionary Supreme Court majority.

First, liberals denied and even ridiculed the possibility of reading the Fourteenth Amendment Trump’s way. But subsequently, they have taken many steps to help normalize that very reading, by consenting to struggle on the terrain of their enemies.

After their loss in the general election produced Trump’s executive order, liberals hope to win at the Supreme Court. If they do, it will be because the politics of interpreting law favored their side, not because of the quality of their legal work. In cases such as this, legal arguments merely facilitate and rationalize outcomes reached for other reasons. Yet it is precisely here—on legal work, and most especially leaning into originalist methods and the virtues of American traditions—that the legalistic opponents of Trump’s new policy have concentrated exclusively.

Welcome to the spectacle of liberal constitutionalism in 2026, which obscures what we are doing, including to ourselves—a mistake for which we have paid an enormous price before.

In the face of a hegemonic and overwhelming discourse focused on what the Fourteenth Amendment really meant and means, we argue in this post for changing the subject. Unlike in the close parallel of NFIB v. Sebelius, where a similar campaign to radically shift constitutional meaning succeeded, liberals might win in Trump v. Barbara. If they do, it’s not going to be because they were “correct” about the law—even if they are. It will be because the political dynamics, having favored unexpected constitutional change unthinkable before in the prior case, stopped it in this one.

Therefore, the right question to ask all along, and openly, wasn’t just what the Constitution means. It is whether the constitutional terrain beckons as strategically opportune, and if so, why it could favor defenders of birthright citizenship in this case. Merely inquiring into what the Framers really believed and insisting one more time that the Constitution was born liberal, are inadequate—unless doing so is our best or sole option strategically.

Many years ago, Jack Balkin observed the great importance of analyzing constraints in legal interpretation. The central suggestion of the critical legal studies movement (of which he was then a member) was not that law is “indeterminate.” But the movement could reveal that ideological forces artificially constrained the range of interpretations of one or another piece of law. And it could better explain than rival frameworks how, under some conditions, the meaning of law could change radically. In subsequent work, Balkin highlighted the importance of who occupies important “nodes of power” in pushing for some meanings rather than others—and, of course, who has succeeded in the quest to control the apex sites of interpretation as the essential determinant of legal meaning when consensus breaks down.

In Balkin’s writings, the most famous example of these dynamics was how the Commerce Clause of the U.S. Constitution was, almost overnight, subjected to a campaign to undo the ideological consensus, that had held since the 1930s, that it imposed next to no limits on Congressional power. A reactionary claim that Barack Obama’s new health care plan in the Affordable Care Act was beyond the legislative authority granted by the Constitution gained traction and then, rather suddenly became the law of the land in NFIB v. Sebelius.

Once “off the wall,” in Balkin’s folksy redescription of the terms of his own earlier approach, the right-wing claim became credible or “on the wall.” Nothing about the Constitution changed. Old precedents remained in force. But enough elements of the ideological constraint were lifted that the new outcome become plausible. The result was devastating: though Chief Justice John Roberts found the saving construction of upholding much of Obama’s law under Congress’s tax power, millions of poor Americans lost the Medicaid expansion that Congress had decided to grant them.

The left pursues its own constitutional agendas of mainstreaming unlikely interpretive propositions, albeit with much less success—think of the attempt to dust off the Fourteenth Amendment’s second section in the litigation to keep Trump off the presidential ballot in 2024. But right now, it is urgent to address how Balkin’s model might help analyze the potential transformation of the amendment’s first section.

Yet legal discourse in the face of Trump’s Day-one executive order rescinding birthright citizenship has been overwhelmingly legalist, indeed originalist, without any hint of the ideological or political focus that Balkin’s model would demand. Liberals are LARPing, not strategizing—at least not openly.

If the executive order goes down, it is not going to be either because of the Constitution’s text or history, nor because of precedents that interpret either. It is because the ongoing right-wing campaign to undo a prior ideological consensus fails. And that reality raises the necessary question of whether playing along with—or into—the legalist and originalist strategies of lifting interpretive constraints of the right is the best move for the left, especially when those strategies on their own will not cast the die for the future of American citizenship.

In our next post, we chronicle the trajectory of this interpretation of the Fourteenth Amendment’s Citizenship Clause as a once fruitless project of constitutional transformation that found more fecund soil in our time—and how liberals and progressives have ended up helping to till it. A final post reflects on the politics of constitutional law, once the birthright citizenship saga is examined from a strategic, rather than legalist, point of view.

Pranjal Drall is a J.D./Ph.D. student at Yale University. Samuel Moyn, Kent Professor of Law and History there, is author of “Gerontocracy in America: How the Old Are Hoarding Power and Wealth—and What to Do About It.”

Two Paths to Drug Reform

David Pozen

It is a rare point of consensus in contemporary politics that our system for regulating drugs has not been working as intended.  Since the 1970s, the United States has managed to experience exponential growth in both drug incarceration rates and drug overdose death rates.  Meanwhile, millions of Americans have been channeled into illicit markets or denied access to substances that would have benefited them.  Few policy failures can compete with U.S. drug law in terms of sheer perversity. 

How can we get out of this mess?

One path might involve changes to the way drugs are “scheduled” under the Controlled Substances Act and analogous state laws.  The existing schedules often force regulators into a Hobson’s choice between overcriminalizing drugs, through prohibitions that predictably backfire, or overcommercializing drugs, through hands-off approaches that leave users vulnerable to corporate exploitation.  The framework for deciding which drugs belong in which schedules, moreover, indefensibly ignores all but a small set of medical considerations.  In a recent law journal article and a companion piece in Science, Matthew Lawrence and I explain how scheduling could be improved by expanding this framework and adding new schedules that replace criminal controls on drug offenders with administrative controls on drug markets.

A second path might involve recognizing rights to use certain drugs in certain contexts.  My book The Constitution of the War on Drugs recounts how a variety of constitutional campaigns against punitive drug laws made headway in prior generations, before ultimately losing out.  In a new paper prepared for the Cornell Law Review symposium on “Revitalizing Freedom of Thought,” Jeremy Kessler and I argue that at least one constitutional door remains open: a First Amendment argument for access to psychedelics based on their capacity to advance “epistemic discovery.”  Many advocates have maintained in recent years that psychedelics ought to be protected under the principle of “cognitive liberty.”  We suggest that the better approach to revitalizing freedom of thought, as well as the most parsimonious account of much of modern free speech doctrine, lies in the principle of epistemic discovery.

The two paths differ in some obvious respects.  Neither the Constitution nor the courts would have much of a role to play in drug scheduling.  By contrast, they would be at the center of any project to expand First Amendment coverage.  The case for scheduling reform is specific to drug policy.  The case for epistemic discovery has broader implications, extending to hot-button topics such as artificial intelligence and digital platform regulation.  What both paths share, however, is a pragmatic orientation that looks to people’s lived experiences to sort drugs into more sensible legal categories, designed to harness their benefits while reducing harms.

Any effort to reimagine drug law might seem like a quixotic project to be pursuing in the time of Trump.  And these particular efforts could of course fall flat.  Yet the current moment may be surprisingly hospitable to broad initiatives in the area, given MAHA’s distrust of the pharmaceutical industry, the Roberts Court’s commitment to First Amendment expansionism, the “psychedelic renaissance” in clinical psychiatry, and the bipartisan interest in curbing the opioid crisis without further fueling mass incarceration.  Against this backdrop, the drug reforms proposed in these papers strike me as politically as well as legally plausible—or, at least, as no less plausible than many other proposals that deserve consideration today.

Enough throat-clearing and self-justification; the work has to speak for itself.  Here is the abstract for the new paper with Kessler:

Epistemic Discovery, Psychedelic Drugs, and the First Amendment

In recent years, the concept of cognitive liberty has drawn support from scholars and activists worldwide.  Proponents of cognitive liberty depict it as extending the right of free thought to encompass a right to “change our brains,” including through the use of psychedelic drugs such as psilocybin, mescaline, and LSD.  Psychedelics, according to countless testimonials, can be doors of perception leading onto new mental landscapes.  Prohibitions on psychedelics are said to infringe the cognitive liberty to open those doors.

This argument helps to illuminate a constitutional blind spot, but its own legal prospects are dim.  In place of cognitive liberty, we propose epistemic discovery as a more promising way to conceptualize the First Amendment interests at stake in policies that indirectly constrain mental freedom.  Epistemic discovery refers to the social and material processes through which humans gain and share knowledge—a pursuit at the heart of modern free speech law.  Whereas cognitive liberty would seem to protect almost any choice to seek a mind-altering experience, no matter how stupefying or stimulating, epistemic discovery allows for more nuanced distinctions.  And whereas cognitive liberty claims do not fit into any established doctrinal framework, epistemic discovery claims could be adjudicated under familiar tests for content-neutral regulations that burden the acquisition or dissemination of information.  Focusing on psychedelics but also touching upon artificial intelligence, digital platforms, and a host of other examples, this Symposium Essay contends that epistemic discovery deserves a central place in First Amendment theory and advocacy.

Trademark Pending

Gerard N. Magliocca

 I have a few left if you still want one. 

Hard Choices on War Funding

David Super

      Two weeks into President Trump’s war of choice against Iran, discussion is increasing about the role Congress will play.  President Trump chose to ignore Congress’s constitutional power to declare war – one of the most intentional choices the Framers made.  But the costs of the war – exceeding $1 billion per day according to some estimates – will surely lead to requests for additional funding to replace expended munitions and restore numerous Pentagon accounts being spent out far more rapidly than anticipated. 

      With the war spectacularly unpopular, congressional Republican leaders are in no hurry to force their Members to vote for more funds.  Most Democrats, in turn, seem inclined to “just say ‘no’” to funding a war they oppose that was started without consulting them.  At some point soon, however, the Pentagon’s capacity to perform more popular responsibilities, such as deterring assaults on Taiwan or South Korea, will come into question.  This post examines the choices Democrats and Republicans will face at that point.

      The traditional approach is for the President to request a supplemental appropriation from Congress.  Supplemental appropriations often turn into “Christmas trees” with ornaments (additional funding) attached by both the Administration and congressional appropriators.  With ordinary “must-pass” legislation, Democrats might be expected to seek funding for their priorities, and to try to hold the line on Republican ornaments, as the price of their votes. 

      Funding cut-offs, actual or threatened, have been a crucial tool for Congresses to force an end to unpopular wars.  Democrats could make a deadline for ending hostilities the price of their votes.  Republicans will object that telling the enemy when we will end attacks will encourage intransigence.  As the Administration still seems not to have figured out what its war aims are, much less how to talk with a regime it keeps trying to decapitate, it is hard to argue that a termination date will hinder negotiations.  And Democrats can argue that the Administration has only itself to blame for starting a war unilaterally. 

      Another possibility might be to limit all new appropriations to being spent on activities unrelated to Iran.  That would let the Administration expend current stocks on its war on Iran while allowing Democrats to vote only for funds to protect Taiwan and South Korea.  This Administration’s repeated violations of appropriations conditions, however, makes the efficacy of this approach dubious.

      Many Democrats, however, oppose this war so vehemently that they will not want to provide votes under any circumstances.  And thanks to former Senator Joe Manchin’s defense of the filibuster, if the Democrats stand their ground (losing no more than six votes in the Senate), they can indeed block a supplemental appropriations bill.  But then what?

      Republicans can bypass the filibuster by funding the Pentagon through budget reconciliation.  The Senate’s “Byrd Rule” prohibits measures authorizing appropriations on reconciliation bills, but a measure that directly funded the Pentagon likely would have the requisite fiscal effect.  Congress historically has rarely funded non-entitlement programs on reconciliation bills out of respect for, or fear of, its Appropriations Committees.  But President Trump has repeatedly humiliated Republican appropriators without provoking any blowback.  He likely could do so again. 

      To fund the war through reconciliation, Republicans would need to pass a “budget resolution” empowering (“reconciling”) the House and Senate Armed Services Committees to report out legislation with military funding.  This resolution cannot be filibustered, but would likely take two or three days of time on the Senate floor.  Once the budget resolution was approved, the Armed Services Committees could send military funding bills to their Budget Committees and then on to their respective floors.  This “budget reconciliation” legislation could not be filibustered, either, although Democrats could force numerous embarrassing votes related to war funding each step of the way.  This likely would take about a week of the Senate’s time (but relatively little in the House). 

      So should Democrats force Republicans to use reconciliation?  Maybe.  If the Republicans have only their own votes, they will need near-unanimity in the House and can lose only three votes in the Senate.  To assure the votes of war-skeptical far-right Republicans who like to posture as fiscal conservatives, leadership may decide to offset the cost of the war with further cuts to Medicaid, the Supplemental Nutrition Assistance Program (SNAP), and other domestic programs.  (Offsets from the opulent upper-income tax cuts in last summer’s reconciliation act would make far more sense but will have little appeal to Republicans.)  While they are at it, Republicans also could provide several years of funding for Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP), mooting Democrat’s filibuster of the Homeland Security Appropriations bill.     

      To be sure, Republicans could include disturbing domestic spending offsets in a supplemental appropriations bill passing through ordinary procedures.  Finding a sufficiently large package of discretionary program cuts to unite their caucus, however, would be challenging – and quite impossible if they are dependent on seven Senate Democratic votes. 

      A third option Republican leaders would have if Democrats refuse to support a war supplemental appropriations bill would be to try to eliminate the filibuster.  President Trump has been loudly demanding that Senate Republicans do so for some time now.  Senate Majority Leader Thune has reported that he lacks the votes in the Republican caucus to eliminate the filibuster over their voter suppressing “SAVE America Act”.  Whether the need to “fund our troops”, combined with President Trump’s insistent pressure, will get him the fifty votes he needs is difficult to predict.  If Senate Republicans do end the filibuster to pass a war supplemental appropriation, however, the next thing they will do is use these new procedures to pass the SAVE America Act.  Ghastly anti-environmental, anti-civil rights, anti-civil liberties, and anti-consumer legislation will quickly follow.    

      Thus, all the Democrats’ choices once a supplemental appropriations bill surfaces are quite unattractive.  They can try to negotiate the best bill they can and then provide the seven votes needed in the Senate to pass it.  If they do, a huge part of the Democratic base will erupt with rage.  Alternatively, they can filibuster and accept the high likelihood that Republicans will pass the funding measure on their own, either offset with savage cuts to low-income programs or through the destruction if the filibuster – and with it almost all Democratic leverage to prevent enactment of the very worst of the far-right legislative agenda. 

      I do not know what the right answer is.  But if anyone tells you the choice is clear, you are likely listening to someone who does not understand what is really at stake.

      @DavidASuper.bsky.social @DavidASuper1