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Legal Fictions in Constitutional Law

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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12 Responses

  1. Brett Bellmore says:

    We’ve got the reality here that the federal government isn’t given certain powers, and the reality that the federal government exercises them anyway, and so could be said to “have” them. I think the real fiction here is that the Court is still enforcing the Constitution.

  2. Jim Maloney says:

    “It is illuminating for purposes of reflection, if not for argument, to note that one of the greatest ‘fictions’ of our federal system is that the Congress exercises only those powers delegated to it, while the remainder are reserved to the States or to the people. The manner in which
    this Court has construed the Commerce Clause amply illustrates the extent of this fiction.”

    Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 307 (1981) (Rehnquist, J., concurring).

    Thirty-one-derful years later, can we now say that Lopez or Morrison have rendered Rehnquist’s 1981 characterization significantly less accurate? OK, maybe just a little, but it’s too little too late…

  3. Joe says:

    Brett, you say that the fiction is the the Court is “still” enforcing the Constitution. When do you think it did?

    I find this debate confused. Congress has some police power. For instance, over D.C. and some other areas, the word “whatsoever” is provided. It also has enumerated powers that provide some sort of police power if not “general” police power. Yes, even today, Congress does not practice total power over everything, the Overton Window not as open as it might be for states.

  4. Brett Bellmore says:

    Yeah, it does have police power, in areas where it functions as though it were a state. The question has never been whether, for instance, the federal government could set speed limits in DC, or on military bases. It was whether it could anywhere else.

  5. Joe says:

    My curiosity continues since Brett again is not inclined to answer my question.

  6. Brett Bellmore says:

    I don’t think the courts ever completely enforced the Constitution. I think there are very important parts of the Constitution, once enforced, which are no longer enforced. (As well as a few not insignificant items which are now enforced, which for a while weren’t… Such as the 14th amendment.)

  7. Joe says:

    The clarification makes the opaque nature of the original statement clearer — “still” refers to certain parts of the Constitution, the period in the past alluded to not enforcing other parts. And, even regarding the enforcement of federalism etc. was of a limited nature except for a few decades, which again, underenforced other parts.

  8. Joe says:

    and even there, a complete well rounded view of federalism say in the day so of Lochner was incompletely carried out. The same applies to each branch of the government and society in general.

    The fact that the entire Constitution was never completely enforced is as surprising as Christians never completely following the 10 Commandments. The real fiction would to ever expect perfection or anything close to it. The Preamble only speaks of a “more” perfect union.

  9. Brett Bellmore says:

    And, as with that analogy, refraining from coveting your neighbor’s goods does not make it necessary to take the Lord’s name in vain. There’s no particular reason we couldn’t resume enforcement of the currently unenforced parts, while keeping the bits that are still in effect enforced. Despite the liberal habit of accusing anybody who longs for enforcement of the interstate commerce clauses actual text of wanting to undo Brown…

  10. Joe says:

    First, just how “unenforced” various parts truly are is quite debatable. There is a good reason not to re-establish various doctrine like determining “manufacturing” can’t be regulated under the Commerce Clause, except when it is. The PPACA is constitutional. It is not a violation of federalism to pass it.

    Second, time shows that courts have limited capital and ability, and a full enforcement of each provision is as possible as complete enforcement of any large body of laws. Also, time showed that you can enforce, sometimes better, certain provisions using the political processes, just as Madison thought would be the key check. If the political processes need to be better, they need to be better.

    Finally, you need to stop targeting “liberals” repeatedly when you allegedly have bigger game, especially if it is to be in that fashion. The liberals disagree with certain people on what Brown demands & ‘accuse’ those who actually have a views on such issues such as the limits of civil rights suits for the disabled when states are involved.

    The people with a more limited view of the latter tend to be those with certain views of federalism and such.

  11. Jim Maloney says:

    With all this talk of the Court’s “enforcing” constitutional provisions, I’m reminded of two things.

    One is the Whorfian hypothesis, which says in essence that language influences thought. If we use the word “enforce” in this context, we may be subtly influencing our understanding of the power of the Court.

    Relatedly, I’m reminded of Andrew Jackson’s paraphrased quote: “John Marshall has made his decision; now let him enforce it!” (In actuality, it was more like, “they find that they cannot coerce Georgia to yield…”)

    In any event, I would suggest that it is entirely a fiction that the Court, of itself, enforces anything. Following Brown, it became clear that actual enforcement by the executive branch could follow a decision, but that is the exceptional circumstance, not the usual one.

    Is there a better verb, less commandeering (in the Whorfian sense) of our thought processes, to describe what the Court does in holding the other branches of the federal government and the States to the terms of the Constitution? Instead of “enforcing” provisions, might we say that it “upholds” them? “Recognizes” them? “Activates” them? I’m looking for a word…

  12. Ken Rhodes says:

    @Jim: I think there has never been any doubt that “enforcement” was an Executive Department function, both at the federal and state levels. I think what SCOTUS does (as well as the various other appeals courts, too, both state and federal) is to “confirm” or “deny” claims or appeals, and in the process “clarify” what the law means.

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