One Constitutional Tradition that Should End

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.

You may also like...

8 Responses

  1. David Bernstein says:

    I think we should go back to the original “tradition,” which is that the president submits his report to Congress in writing, with no public speech and no hoopla.

  2. Joe says:

    The in writing tradition (quotes or no quotes) has something going for it, but is not to be in our media age. The response is part of it too really. I don’t think it too bad. If it was seriously done, it might even be useful.

  3. Steven Lubet says:

    The “original” tradition was to deliver a speech to a joint session of Congress, as was done by Presidents Washington and Adams. It was Jefferson who changed the practice by sending a written message, and Wilson (I believe) who changed it back to an annual address.

  4. Howard Wasserman says:

    The practice of a reply is the clearest indicator that Daryl Levinson is right–we have too confused presidential and parliamentary systems. It no longer is the executive reporting to Congress on the state of the union; it is a Democrat reporting, which demands a reply from a Republican.

  5. Shag from Brookline says:

    TV has turned this into political entertainment with the camera work indicating those applauding, those sitting on their hands, switches to individual Senate and House members of each party for reactions, the entrance (and departure) spectacles, Supreme Court members in their robes (indicating separation of powers?), military in full uniform regalia displaying batches of medals, etc,, multiple standing ovations, scanning of spectators with their varying interests, and the extensive post-speech pundit commentary (for which the pundits have been well prepared with advance copies of the speech), not to mention the often non-responsive response of some opposition element. And the following Sunday, we can expect further punditry. Why not just mail it in.

  6. Orin Kerr says:

    I think the replies to the SOTU are valuable. Most people don’t follow politics, and no one is required to watch either the SOTU or the reply. The prominence of the speech and reply help frame political values and priorities for the folks who aren’t political junkies.

  7. Orin Kerr says:

    (I should add that I don’t think replies to SOTU are a “constitutional tradition.” It’s just a recent political practice because the media feels compelled to cover it, so it’s free advertising for the party that doesn’t have the Presidency.)

  8. Joe says:

    Per a comment, “Congress” and “the President” being separate entities, full stop, seems to me to have been falling apart as far back as Jeffersonian-Republicans in the Washington Administration opposing Federalist policies. I don’t know how much inauguration addresses factored in, but it would be surprising if political opposition parties didn’t put forth some sort of reply to various antebellum presidential proposals for legislation over the years.