Where Freedom Ends

In Harvard Square in Cambridge, Massachusetts, there is a pub named Grendel’s Den, after the monster in the Old English epic poem Beowulf. It prominently displays a comedic circular crest claiming that it was established in 1271. Long known for its microbrewed beer and convivial atmosphere, the modest bar and grill in fact opened seven hundred years later, in 1971.

The story the forthcoming 2024 election brings vividly to mind began at that pub just a few years later, in 1976, when I was teaching a class about the separation of church and state in American law. I was talking about the connection between religion and the federal ban on mailing so-called obscene matter—including, as Congress viewed things a century earlier in 1873 when it passed the Comstock Act, not just printed materials but contraceptives and pregnancy-ending drugs or devices that some religious groups considered sinful.¹ Named after the misogynist crusader Anthony Comstock, it outlawed, among other things, mail-order condoms, which were being delivered to men along with risqué photos that its sponsors saw as ungodly aids to sexual pleasure and accompaniments to prostitution. Despite several efforts to repeal it, the bulk of the Comstock Act has remained on the books to the present day and could still be used by anti-abortion federal prosecutors against anyone who distributed by mail materials for medical management of miscarriages, including by inducing abortion, whether with mifepristone or other medications. And it could be used that way even if the Congress we elect this fall does not enact a nationwide abortion ban.

One question I explored with students of the Constitution in 1976 was whether federal enforcement of the Comstock Act’s prohibition against mailing pregnancy-ending drugs would be precluded by the Supreme Court’s then-recent overturning of the sweeping abortion ban that the Texas legislature had enacted in the Comstock spirit. Did that decision, Roe v. Wade (1973), invalidate a nationwide federal ban on some category of abortions or only a ban enacted by a single state with especially little regard for women’s control over their own bodies?

In my analysis of Roe v. Wade shortly after the case was decided, I invoked the separation of church and state, despite the Court’s failure to invoke that First Amendment principle as a pillar of its ruling about a pregnant woman’s “liberty.”² That justification for the Court’s controversial decision might have been more clearly applicable if it were invalidating an act of Congress—which is prohibited by the First Amendment from enacting nationwide laws “establishing” a religion—rather than a law enacted by a single state.³

In any event, the Court never ruled on whether Roe v. Wade invalidated the Comstock Act, which raises important issues. For example, the duty of the president under Article II to “take Care that the Laws be faithfully executed” might override the authority of the Justice Department to decline to defend, let alone enforce, legislation such as the Comstock Act that the attorney general deems unconstitutional. Beyond that, however, there is the more basic question of the president’s constitutional obligations compared with those of the Supreme Court: Does its authority to “say what the law is” give it merely the last word or exclusive power to determine the constitutionality of any state or federal law? Does not the president’s oath to uphold the Constitution mean that he has a duty to make his own determination of the constitutionality of any law he is responsible for enforcing, or must the executive branch enforce it unless the Court has pronounced it unconstitutional?

But to return to my story: a student in the class I was teaching in 1976—Ira Karasick, later the township attorney for Montclair, New Jersey—raised his hand to ask why he couldn’t order a beer with his lunch at Grendel’s Den. The question was surprising because it had no obvious connection to the separation of church and state, much less to the use of law to punish intimate personal choices that some religions denounce as sinful. But I soon learned that Grendel’s Den had been opened by Ira’s second cousin by marriage, who was born in Germany during Hitler’s time in power and had come to America from Bavaria with his family in his early twenties, in no small part to escape the burdens of life under the heavy fist of religious oppression cloaked in the benign-looking glove of government under law.

That distant cousin, Herbie Kuelzer, had been taught that in America the people governed themselves and were secure from oppression on religious grounds or by religious groups. He was appalled when an Armenian Catholic church next door to Grendel’s Den invoked a Massachusetts law empowering churches and schools to veto the liquor licenses of businesses within a five-hundred-foot radius. Without such a license, his little restaurant could not survive near Harvard, where it competed with dozens of other places that routinely served beer and wine to their customers.

My student Ira shared Herbie’s dismay, especially after I’d explained to the class that a major reason that groups seeking liberation from oppression by mainstream Christian churches (mainly but not entirely Catholic) in Europe fled to this continent was that religious institutions in the American colonies could not control the way people chose to live their lives in civil society. This was true even in places like the Massachusetts Bay Colony that had “established” churches during the colonial and Revolutionary periods. Those colonies insisted from the earliest days on separating the secular tools of civil power from the spiritual authority of the church. And reflecting that tradition, the very first sentence of the First Amendment expressly promised: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

I worked with Ira to challenge the Massachusetts law in federal court. We cited the Reconstruction-era federal Civil Rights Law authorizing suits against state officials acting in violation of people’s rights, arguing that, in doing the church’s bidding, the state’s licensing authorities were enabling it to exercise “a veto power over governmental licensing authority.” Although it feels like it was just yesterday, it was forty-two years ago this fall, in 1982, that I argued the case in the Supreme Court. That December, in Larkin v. Grendel’s Den, the Court by a vote of 8–1 upheld the restaurant’s challenge and struck down the Massachusetts law. In his opinion Chief Justice Warren Burger agreed that the law violated the First Amendment by empowering churches like the one adjacent to Grendel’s Den to wield what amounted to governmental power over neighboring restaurants and pubs. Burger emphasized that the right the restaurant’s owner claimed was not the right to serve beer and wine, which the Twenty-First Amendment clearly authorized states and municipalities to regulate and even abolish, but the right to live free of restraints on liberty imposed by religious organizations rather than by democratic decision-making processes. In a solo dissenting opinion written with his characteristic verve, Justice William Rehnquist deemed the whole case “silly” and declared himself “unpersuaded” that the law was “some sort of sinister religious attack on secular government reminiscent of St. Bartholomew’s Night.”

Whether persuaded by the Grendel’s Den majority or not, many would agree that compelling a woman to remain pregnant from the moment of conception on the grounds that the embryo she is carrying is a “person” represents the imposition of an inherently religious view upon everyone by force of law. Years later I invoked the principle of the Grendel’s Den decision to try to persuade the Supreme Court to invalidate an unusual Texas law (SB 8) that offered a hefty bounty ($10,000) to anyone who reported for possible prosecution a medical professional who had performed an abortion in violation of the state’s extreme six-week ban. I joined others in arguing that the law’s vigilante structure violated the core principles Roe and Grendel’s Den had vindicated, by enabling those with religious objections to abortion to impose their views while avoiding the direct involvement of state officials, thereby escaping judicial review. Before a Supreme Court much less dedicated to those constitutional principles than its predecessors had been, we lost that challenge in 2021.

My career as a constitutional scholar and advocate has been marked by many similar ebbs and flows. In 1986 I lost by a 5–4 vote a Supreme Court case, Bowers v. Hardwick, in which I argued that states have no power to criminalize intimate sexual behavior between consenting adults in private, regardless of the gender of the individuals involved. That the law condemning such sexual freedom rested on religious views that many do not share was indisputable. Indeed, Chief Justice Burger, in a separate concurring opinion, went out of his way to invoke the supposed biblical prohibitions of consensual private conduct that he deemed “an offense of ‘deeper malignity’ than rape,” “a heinous act ‘the very mention of which is a disgrace to human nature,’” and “a crime not fit to be named.” The barely disguised homophobia of the Court’s majority led it to dismiss as “facetious” the idea that the “right of homosexuals” to engage in what it called “homosexual sodomy” is a “fundamental right” under our Constitution.

A more enlightened view of human liberty—and a deeper commitment to the flourishing of individual privacy, equality, and dignity—was reflected in the opinions of the four dissenting justices, all of whom saw clearly the connection between the separation of church and state and the separation of government from the most intimate personal choices about love and sex. Justice Harry Blackmun’s eloquent dissent, joined by Justices William Brennan, Thurgood Marshall, and John Paul Stevens, was blunt:

That certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends instead on whether the State can advance some justification for its law beyond its conformity to religious doctrine.

In arguing the case on behalf of Michael Hardwick, I realized that the odds of prevailing in 1986 were slim, but I hoped to lay the groundwork in the dissents for an eventual overruling of the Supreme Court’s small-minded rejection of his claim. That hope was vindicated in 2003 when the Court, in a 6–3 decision in Lawrence v. Texas, overturned Bowers v. Hardwick, expressly ruling that “Bowers was not correct when it was decided, and it is not correct today.” Having written the principal brief on behalf of the American Civil Liberties Union in that case from Texas, I was of course enormously pleased to read that endorsement of the argument I had made seventeen years earlier in Bowers, a decision I had told my students in each succeeding year was destined to end up in history’s dustbin. The Lawrence decision laid the foundation for the Court’s later holding, in Obergefell v. Hodges (2015), that states cannot limit marriage to opposite-sex couples.

When a far more reactionary Supreme Court majority—one third of whose members were appointed by Donald Trump—overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization (2022), the pendulum had obviously swung sharply against freedom, including freedom to control what is done to your body and freedom to live your life in accord with your own conscience and not the dictates of any religious or other sectarian group. Should the November 2024 election yield the results for which I fervently hope and am tirelessly working, Congress will be in a position to enact a nationwide restoration of abortion rights along the lines of those protected in 1973 by Roe v. Wade, exercising its broad power over commerce in a direction opposite that of the Comstock Act passed one hundred years earlier.

Whether the Court that brazenly overruled Roe in Dobbs, offering no basis for its change of position beyond the brute fact that a majority of its justices saw the world differently, would also overturn the dozens of rulings broadly construing the Commerce Clause and decide that a law reinstating Roe exceeds Congress’s authority is a question not of law but of politics. Any fair reading of the relevant legal materials offers no meaningful support for such a decision, which would also in effect leave the Comstock Act in place as binding federal law enforceable by criminal penalties including imprisonment, even in states that broadly support the right of individuals to control their own bodies despite what one or another religious group believes to be sinful. And interpreting the Constitution that way would criminalize abortion despite the Supremacy Clause of Article VI, which allows federal regulation of medical procedures like abortion to preempt state law as well as to override preexisting congressional legislation. But as became unmistakably plain in Dobbs—and in an inconclusive Supreme Court decision, Idaho v. United States in June 2024, involving a conflict between state law and the federal Emergency Medical Treatment and Labor Act—the extreme and legally bizarre character of the ongoing rollback of individual freedoms, whether in the name of states’ rights or otherwise, and the ensuing loss of public confidence in the institution delivering that blow cannot be counted on to deter justices handpicked to deliver just such results.

In what appears to be the climax of its consistently right-wing legal movement, the Roberts Court, by a 6–3 vote along strictly partisan lines in Trump v. United States last July, conferred on former president Trump and all future presidents a remarkably sweeping immunity from criminal accountability for much if not all of what they might do while in office: consolidate their power, investigate and prosecute their political critics and adversaries, promise to pardon those who commit crimes in their service despite the laws making bribery a criminal as well as an impeachable offense, and otherwise obliterate any and all the freedoms that define the American constitutional creed. That astonishing decision has been sufficiently criticized elsewhere, so it is superfluous for me to say more about it here.

It is, however, worth noting that the decision about presidential immunity renders virtually irrelevant the well-intentioned drumbeat urging the preservation of what is at best an illusory separation between presidential authority and the prosecutorial decisions of the Department of Justice, a separation that is unavoidably in tension with the fact that the attorney general serves at the pleasure of the president. When the Supreme Court delivered its decision, I wrote an opinion piece in The New York Times arguing that, to the degree we truly want a constitutional system in which the president cannot direct how the attorney general’s department of the executive branch deploys its civil and criminal resources, we must amend the Constitution to create an independent fourth branch of government akin to the prosecutorial branch employed by more than thirty-five of our states and by most foreign democracies.⁴ Whether we want such a system, though, remains an open question.

I am led back to these observations as I read one essay after another—as well as a thoroughly researched, carefully balanced new book, Where Tyranny Begins, by the respected journalist David Rohde⁵—issuing dire warnings that the greatest threat of tyranny posed by a second Trump administration is the threat of a Justice Department thoroughly subordinated, as the Constitution’s design currently permits but as tradition resists, to the priorities and indeed the whims of the elected president of the United States.

Rohde’s isn’t a new warning. It was the topic of a comprehensive essay by Adam Klasfeld and Ryan Goodman, “Chronology of a Dozen Times Trump Pushed to Prosecute His Perceived Enemies.”⁶ Indeed, it was in 1689 that John Locke wrote, “Wherever law ends, tyranny begins.” It’s an idea that, as Andrew Weissmann emphasized in his fine book Where Law Ends, is “carved indelibly into the limestone walls of the Department of Justice in Washington.”⁷ But no less fundamental, and in my view more so, are the words carved indelibly on the façade of the US Supreme Court building: “Equal Justice Under Law.”

That motto—and all that it portends—has been my guidepost since the start of my adventure with the law. The story I have recounted about Grendel’s Den and the Supreme Court litigation that lifted the heavy hand of church-directed government power from the economic liberty of its owner, Herbie Kuelzer, has served as my principal case in point. The threat to all our personal freedoms and civil liberties posed by a second Trump administration is not principally that Trump will finally have learned how to thoroughly weaponize his Department of Justice, filling it with obedient acolytes. We needn’t underestimate this threat to recognize that we look through the wrong end of the telescope if we focus on the powers an unleashed president might exercise through his underlings rather than on the freedoms that exercise would suffocate.

It is those freedoms, both negative and positive, that are secured to all of us by the Bill of Rights, the Reconstruction Amendments (the Thirteenth and Fourteenth), and the Voting Rights Amendments (the Fifteenth, Seventeenth, Nineteenth, Twenty-Third, Twenty-Fourth, and Twenty-Sixth). With those freedoms at stake, it seems myopic in the extreme to focus, as many have recently done, on the threat of an administration that would turn its back on the traditions and customs protecting the independence of the Justice Department from the White House. For it is the ordinary, day-to-day life we lead at our kitchen tables and in our bedrooms that is most dangerously threatened by the tyranny that a return of Trump to power would represent.

One example of such tyranny that seems conspicuously relevant these days is the Comstock Act, which wrote into federal law the extreme view of political groups that had the clout to criminalize extramarital sex and even marital sex whose purpose was anything other than bringing children into the world. Little did anyone suspect in the 1970s, after Roe was decided, that a lively issue half a century later would be whether our nation would elect a president who had promised to direct his attorney general to revive the Comstock Act and resume federal prosecution of violators of that old law, including medical professionals who dare to send mifepristone or other abortion-inducing medications through the US mails. Yet that is a recommendation in the Heritage Foundation’s Project 2025 that Trump could very well implement if reelected.

This is the kind of tyranny that everyone who reads these words should fear most and work hardest to hold at bay. By all means valorize the rule of law and the integrity of our legal institutions, including the traditions and customs that provide guardrails beyond those of our inevitably imperfect constitutional design. But never forget that law can oppress as easily as it can liberate and that it is the content and spirit of our laws and the character of those we entrust with enacting and enforcing them that makes fidelity to law so central to our experiment in self-government.

That was the lesson my experience—from Grendel’s Den and the Comstock Act to the current discussions about how important it is to preserve the Justice Department’s independence—taught me. It’s a lesson I would tentatively generalize this way: institutional integrity and fidelity to process, backed by honorable traditions and customary norms, can go only so far toward the substantive end that should guide us—liberty and justice for all.