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The Gold Clause Cases and Constitutional Necessity

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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2 Responses

  1. Doesn’t the claim of necessity kind of ignore the possibility of amending the Constitution, in order to make the “necessary” conduct genuinely constitutional?

    In any event, there are long term problems generated by the fact that the courts do not, typically, say, “This is unconstitutional, but we’ll permit it out of necessity.“. But instead say, “Because this is necessary, it’s constitutional.” The result is an accumulation of exceptions which are not acknowledged to BE exceptions, warping judicial reasoning, and making the judicial ‘interpretation’ of the Constitution go on a drunkard’s walk, progressively departing from any normal reading of the text.

    Perhaps we need a formal “necessity” exception mechanism, whereby the courts could explicitly hand out permission to temporarily violate the Constitution, in the event of necessity, but only for a limited time while an amendment was pursued. Said permission to expire if no amendment was forthcoming or pursued.

  2. Thomas says:

    It should also be noted in the constitution that all people show have all their impending death records in order like for example if they lived in Ohio all their Ohio death records would be correct and ready to file, of course for when they are deceased.