Bingham on Constitutional Liability Rules
posted by Gerard Magliocca
I’ve finished the chapter of the biography on the drafting of the Fourteenth Amendment, which brings my story up to 1867. Along the way, I encountered an interesting side note.
I’ve posted before about “constitutional super penalties,” which refer to situations where a right can be exercised only if an institution is willing to make a special sacrifice. My chief example is Section Two of the Fourteenth Amendment, which allowed states to disenfranchise African-American men but said that if they did their representation in the House of Representatives and in the Electoral College would be reduced. One criticism I’ve received about this project is that is the distinction between property rights and liability rules in a constitutional context is basically meaningless because the violation of a property right is often enforced by a liability rule in the form of money damages or a criminal penalty.
When Bingham discussed Section Two, he addressed this issue and pretty much agreed with that criticism. Section Two was attacked on the ground that it conceded “that a majority may disenfranchise a minority.” Here was his response:
“The construction insisted upon by gentlemen amounts to this, that a law which inflicts a penalty or works a forfeiture for doing an act, by implication authorizes the act to be done . . . There cannot be such a construction of the proviso. It is a penalty. . . . You place upon your statute-book a law punishing the crime of murder with death. You do not, thereby, by implication, say that anybody may, of right, commit murder.”
I must admit that I’m less confident in my thinking on the constitutional liability rules concept than I was six months ago, but I’ll revisit that when this book is done.
February 25, 2012 at 3:02 pm
Posted in: Constitutional Law
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