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What I’ve Learned So Far

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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3 Responses

  1. Dear Gerard,

    I read your recent post on Professor Akhil Amar’s new book. (http://www.concurringopinions.com/archives/2012/09/what-ive-learned-so-far.html) I am in IRELAND now. I don’t yet have a copy, as it will not be printed in the Common Travel Area until sometime next month. But I have seen copies of drafts of Amar’s book. He presented several chapters as working papers and the papers are available on the internet. I have attached a draft copy of a chapter of his book. (See http://lawweb.usc.edu/who/faculty/workshops/documents/Amarspaper.pdf)

    There Amar wrote:

    Let us put aside, for a moment, the iconic parchment, which is only a ceremonial document, and focus instead on the official printed Constitution—the democratic one, the legal one, the one actually ratified by the people. The September 28 print sent out to the state ratifying conventions did contain a typeset list of the Philadelphia signatures, preceded by the very same dating words [the Attestation Clause] that have caused all the shouting.
    But are these words part of the legal Constitution itself, or are they actually something else, akin to other documents that accompanied the written Constitution yet were not part of it? Although no prominent debater has cleanly posed this question, it gets us to the crux of the matter.

    Draft at 89 (footnote omitted).

    There are two primary versions of the Constitution under discussion here: the parchment version (the signed version at the national archives) and the printed archetype (the printing that the Charles Thomson, Secretary of the Articles Congress, sent the States to ratify). In the passage above, Amar states that both versions had the Attestation Clause and the signatures. His point is that the Attestation Clause and signatures are not part of the operative legal document. Rather, the Attestation Clause and signatures only attest to the work product of the Federal Convention, and were not part of the (legal) Constitution itself. I think his claim odd, but whether Amar’s interpretive claim is right or wrong, in his draft paper, he did NOT take the position that the Attestation Clause was absent from either of the two primary authorized/official versions of the Constitution. I really doubt that he changed his mind on this issue. It is primarily a question going to the historical record, not interpretation.

    Can I ask you to check to see if you have correctly represented the position Amar took in his book. FWIW, I found the flow of Amar’s language and his rhetoric (in his draft paper) difficult to negotiate. If the error is yours, I, at least, do not fault you.

    Seth

    Seth Barrett Tillman
    Nat’l Univ. of Ireland Maynooth, Lecturer of Law
    Ollscoil na hÉireann, Má Nuad
    http://law.nuim.ie/staff/mr-seth-barrett-tillman
    http://ssrn.com/author=345891
    http://works.bepress.com/seth_barrett_tillman

    Seth Barrett Tillman, Closing Statement, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 NW. U. L. REV. COLLOQUY (forthcoming circa 2012-2013), http://ssrn.com/abstract=2012803

    http://www.dorfonlaw.org/2012/08/coda-on-dual-service-in-congress-and-as.html (Lederman-Tillman in comments)

  2. Joe says:

    I think #3 is a reasonable policy but the book (from the Amazon preview I could glance at) does seem to reasonably suggest the opinion took it too far as some sort of set “rule,” and it was one of the weak parts of the plurality that was taken to somewhat sanctimonious extremes.

    #1 was probably a Democratic plot.

  3. Seth Tillman says:

    Dear Gerard,

    I read your recent post on Professor Akhil Amar’s new book. (http://www.concurringopinions.com/archives/2012/09/what-ive-learned-so-far.html) I am in IRELAND now. I don’t yet have a copy, as it will not be printed in the Common Travel Area until sometime next month. But I have seen copies of drafts of Amar’s book. He presented several chapters as working papers and the papers are available on the internet. I have attached a draft copy of a chapter of his book. (See http://lawweb.usc.edu/who/faculty/workshops/documents/Amarspaper.pdf)

    There Amar wrote:

    Let us put aside, for a moment, the iconic parchment, which is only a ceremonial document, and focus instead on the official printed Constitution—the democratic one, the legal one, the one actually ratified by the people. The September 28 print sent out to the state ratifying conventions did contain a typeset list of the Philadelphia signatures, preceded by the very same dating words [the Attestation Clause] that have caused all the shouting.
    But are these words part of the legal Constitution itself, or are they actually something else, akin to other documents that accompanied the written Constitution yet were not part of it? Although no prominent debater has cleanly posed this question, it gets us to the crux of the matter.

    Draft at 89 (footnote omitted).

    There are two primary versions of the Constitution under discussion here: the parchment version (the signed version at the national archives) and the printed archetype (the printing that the Charles Thomson, Secretary of the Articles Congress, sent the States to ratify). In the passage above, Amar states that BOTH versions had the Attestation Clause and the signatures. His point is that the Attestation Clause and signatures are not part of the operative legal document. In other words, the Attestation Clause and signatures only attest to the work-product of the Federal Convention, and were not part of the (legal) Constitution itself. I think his claim odd, but whether Amar’s interpretive claim is right or wrong, in his draft paper, he did NOT take the position that the Attestation Clause was absent from either of the two primary authorized/official versions of the Constitution. I really doubt that he changed his mind on this issue. It is primarily a question going to the historical record, not interpretation.

    Can I ask you to check to see if you have correctly represented the position Amar took in his book. FWIW, I found the flow of Amar’s language and his rhetoric (in his draft paper) difficult to negotiate. If the error is yours, I, at least, do not fault you.

    Seth

    Seth Barrett Tillman
    Nat’l Univ. of Ireland Maynooth, Lecturer of Law
    Ollscoil na hÉireann, Má Nuad
    http://law.nuim.ie/staff/mr-seth-barrett-tillman
    http://ssrn.com/author=345891
    http://works.bepress.com/seth_barrett_tillman