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This book recovers a lost history of constitutional challenges to punitive drug laws. Throughout the 1960s and 1970s, advocates argued that criminal bans on marijuana, cocaine, psychedelics, and other substances violate the U.S. Constitution's guarantees of due process, equal protection, federalism, free speech, free exercise of religion, and humane punishment. Legal scholars and government commissions grappled with these arguments. State and federal courts endorsed them in pathbreaking rulings. By the 1980s, however, the movement for drug rights had collapsed, paving the way for the contemporary war on drugs and its disastrous consequences for racial justice, individual freedom, and public health. This study shows how constitutional law could have denied the drug war but instead became ever more defined by it—how a profoundly illiberal and paternalistic policy regime was assimilated into, and came to shape, an ostensibly liberal and pluralistic constitutional order. The book details the internal doctrinal dynamics and external cultural developments that first facilitated and then foreclosed challenges to drug prohibition. It explains how courts in other countries have curtailed punitive drug laws using a different approach to rights review. It evaluates the costs and benefits of the U.S. jurisprudence. And it considers potential constitutional paths still open to drug reformers today. In addition to offering a new perspective on the war on drugs, the book supplies a panoramic tour of many of the key features and failings, compromises and contradictions, of late twentieth-century American constitutionalism.

The U.S. Freedom of Information Act (FOIA) allows any person to request any agency record for any reason. This model has been copied worldwide and celebrated as a structural necessity in a real democracy. Yet in practice, this Article argues, FOIA embodies a distinctively "reactionary" form of transparency. FOIA is reactionary in a straightforward, procedural sense in that disclosure responds to ad hoc demands for information. Partly because of this very feature, FOIA can also be seen as reactionary in a more substantive, political sense insofar as it saps regulatory capacity; distributes government goods in an inegalitarian fashion; and contributes to a culture of adversarialism and derision surrounding the domestic policy bureaucracy while insulating the far more secretive national security agencies, as well as corporations, from similar scrutiny. If this Article's core claims are correct to any significant degree, then open government advocates in general, and progressives in particular, ought to rethink their relationship to this landmark law.

The concepts of good faith and bad faith play a central role in many areas of private law and international law. Typically associated with honesty, loyalty, and fair dealing, good faith is said to supply the fundamental principle of every legal system, if not the foundation of all law. With limited exceptions, however, good faith and bad faith go unmentioned in constitutional cases brought by or against government institutions. This doctrinal deficit is especially striking given that the U.S. Constitution twice refers to faithfulness and that insinuations of bad faith pervade constitutional discourse. This Article investigates these points and their implications for constitutional law, theory, and politics. Good faith norms, the Article explains, are unevenly enforced throughout constitutional doctrine. Yet in spite of, and partly because of, their uneasy status within the courts, these norms perform a variety of rhetorical and regulative functions outside the courts. Moreover, different conceptions of constitutional bad faith have come to be associated with different constitutional actors; sorting out these conceptions helps to illuminate the architecture of constitutional debate. The Article further explores how sacralization of the Constitution pushes interpreters not only to insist on their own fidelity but also to see competing views as treacherous or deceitful. The overarching obligation to keep faith with the canonical text, in other words, contributes to a culture rife with suspicion of interpretive bad faith.

Self-help doctrines pervade the law. They regulate a legal subject's attempts to cure or prevent a perceived wrong by her own action, rather than through a mediated process. In their most acute form, these doctrines allow subjects to take what international lawyers call countermeasures – measures that would be forbidden if not pursued for redressive ends. Countermeasures are inescapable and invaluable. They are also deeply concerning, prone to error and abuse and to escalating cycles of vengeance. Disciplining countermeasures becomes a central challenge for any legal regime that recognizes them. How does American constitutional law meet this challenge? This Article contends that a robust set of unwritten, quasi-legal norms shapes and constrains retaliation as well as cooperation across the U.S. government, and it explores how these conventions of self-help correspond to regulatory principles that have emerged in public international law. Re-envisioning intragovernmental conflict through the lens of self-help gives us new descriptive and critical purchase on the separation of powers. By attending to the theory and practice of constitutional countermeasures, the Article tries to show, we can advance familiar debates over legislative obstruction and presidential adventurism, and we can develop richer models of constitutional contestation within and beyond the branches.?

The United States government leaks like a sieve. Presidents denounce the constant flow of classified information to the media from unauthorized, anonymous sources. National security professionals decry the consequences. And yet the laws against leaking are almost never enforced. Throughout U.S. history, roughly a dozen criminal cases have been brought against suspected leakers. There is a dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice. This Article challenges the standard account of that disconnect, which emphasizes the difficulties of apprehending and prosecuting offenders, and advances an alternative theory of leaking. The executive branch's "leakiness" is often taken to be a sign of organizational failure. The Article argues it is better understood as an adaptive response to external liabilities (such as the mistrust generated by presidential secret keeping and media manipulation) and internal pathologies (such as overclassification and bureaucratic fragmentation) of the modern administrative state. The leak laws are so rarely enforced not only because it is hard to punish violators, but also because key institutional actors share overlapping interests in maintaining a permissive culture of classified information disclosures. Permissiveness does not entail anarchy, however, as a nuanced system of informal social controls has come to supplement, and all but supplant, the formal disciplinary scheme. In detailing these claims, the Article maps the rich sociology of governmental leak regulation and explores a range of implications for executive power, national security, democracy, and the rule of law.