Obama, the Fourteenth Amendment, and the Drug War

This article is written to help clarify the full range of understanding Obama would bring to a second term. Specifically, I defend two related, contested theses. My core thesis, to which this article is primarily devoted, is a jurisprudential claim: contrary to state and lower federal court rulings, marijuana prohibition is subject to strict judicial scrutiny under leading relevant U.S. Supreme Court jurisprudence. I support this thesis primarily by showing that under the Fourteenth Amendment, bodily autonomy—i.e., the control over the borders and contents of one’s body burdened by laws like marijuana prohibition—is a fundamental right, and that the Court has thus established a presumption in its favor, especially for adults in the home. I then reinforce this thesis with three further arguments: (1) marijuana prohibition violates “justice as regularity,” (2) marijuana prohibition satisfies the “suspect class” trigger of strict scrutiny, and (3) bodily autonomy is closely analogous to the fundamental right of free speech. In sum, I argue that all roads of constitutional analysis lead to strict scrutiny of marijuana prohibition. My second thesis, resting largely on the first, is a policy claim: if reelected, Obama will be inclined, and ought, to urge Congress to end federal marijuana prohibition, letting States go their own way within federal guidelines. As President, he knows that if he is convinced, on both policy and constitutional grounds, that the law must be changed, he need not wait for the Court to act—or more accurately, react. Especially if the current pace of state marijuana law reform continues through 2012, Obama’s recommendation will have broad support by the time he delivers his 2013 State of the Union address. An application of strict scrutiny to marijuana prohibition is the subject of another article. Here I simply show that the President has ample reason under well-settled law to conclude that this prohibition is properly subject to that high standard. It may be that prohibition of cocaine, heroin and methamphetamine could survive strict scrutiny. These too are the subjects of other articles. Obama takes the rule of law seriously, however, and he would have grave doubts that marijuana prohibition could pass an honest application of strict scrutiny, in turn prompting him to urge Congress to end this costly war

Rawls and Reparations

In the past two years, four related events have sharpened debates on race in the U.S.: President Obama\u27s election, the nomination of Judge Sonia Sotomayor to the Supreme Court, that Court\u27s ruling in Ricci v. DeStefano, and the arrest of Obama\u27s friend, Harvard professor Henry Gates. The President has spoken of a teaching moment arising from these events. Moreover, his writings, speeches and lawmaking efforts illustrate the contractual nature of Obama\u27s thinking. The President (and all concerned citizens) should thus find useful an analysis of racial policy and justice in light of the work of John Rauls. Rawls may be the most influential political theorist of our time. Applying his theory to questions of race policy, this Article defends the following counterintuitive thesis: while strong forms of affirmative action cannot be derived from Rawls\u27s theory, strong forms of legislative reparations can be so derived. This Article concludes with a concrete plan for raising the resources such reparations would require

Gonzales v. Raich: An Opening For Rational Drug Law Reform

On June 28, 2004, the Supreme Court granted review in Gonzales v. Raich, one of the California medical marijuana cases. Oral argument was heard on November 29, 2004, and a ruling is expected by June, 2005. Raich presents the Court an historic opportunity to enable sensible drug law reform at the State level

Grutter v. Bollinger and Civil Disobedience

One of two articles in this issue on Grutter v. Bollinge