Author: Gerard Magliocca

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A Plea Bargaining Strike

I am seldom shocked these days, but the article in this week’s New Yorker about Kalief Browder is astonishing.  Browder is arrested for theft.  He does not receive bail.  He is imprisoned for three years on Rikers Island without trial.  Then the prosecutor dismisses the case (because the alleged victim moved to another country).  How this could go on without a successful Sixth Amendment claim is beyond me.  (Browder is now suing for damages).  The New York criminal justice system (at least in the City) should be deeply ashamed.

This leads me to ask a broader question about the constitutional guarantee of a “speedy trial.”  Nobody would be surprised to learn that trials are much less speedy now than they were in 1791 or 1868.  Some of that is unavoidable, but I wonder to what extent this constitutional right is ripe for rediscovery.  Consider that this is a right that protects defendants.  If the state cannot get its case together in a timely way, then the charges must be dismissed.  Moreover, if a state or local criminal justice system is underfunded such that trials cannot happen quickly, then the charges must be dismissed.  At least that could be how the Sixth Amendment is applied.  My sense, though, is that courts rarely find that a defendant’s speedy trial right is violated.  (I can tell a good story about the related right to a “public trial” from my clerking days, but I’ll save that for another post.)  An originalist could have a field day with this subject.

This brings me to my last thought.  People often complain about the use of plea bargaining and its abuses.  Imagine for a moment that there was a plea bargaining strike.  Under any reasonable interpretation of the Sixth Amendment, most of the striking defendants should go free.  Why?  Because the current criminal justice could not handle so many trials–the delays and backlog would be enormous.  That suggests the existence of a significant right/remedy gap.

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Enumerated Powers Reconsidered

I want to flag a new paper by Richard Primus (full disclosure–my co-clerk and friend) forthcoming in Yale Law Journal.  “The Limits of Enumeration” will likely be a significant contribution to the debate on the powers of Congress that was at the heart of NFIB v. Sebelius.  Here is the Abstract:

According to a well-known principle of constitutional interpretation here identified as the “internal-limits canon,” the powers of Congress must always be construed as authorizing less legislation than a general police power would. This Article argues that the internal-limits canon is unsound. Whether the powers of Congress would in practice authorize any legislation that a police power would authorize is a matter of contingency, not a matter of principle: it depends on the relationship between the powers and the social world at a given time. There is no reason why, at a given time, the powers cannot turn out to authorize any legislation that a police power would. This Article explains why setting aside the internal-limits canon is consistent with the interests of federalism, with fidelity to the Founding design, and with the text of the Constitution.

 

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Happy Constitution Day!

On this solemn anniversary I ask that the American people rejoice in the wisdom of their Constitution.  I ask that they guarantee the effectiveness of each of its parts by living by the Constitution as a whole.  I ask that they have faith in its ultimate capacity to work out the problems of democracy, but that they justify that faith by making it work now rather than twenty years from now.  I ask that they give their fealty to the Constitution itself and not to its misinterpreters.  I ask that they exalt the glorious simplicity of its purposes, rather than a century of complicated legalism.  I ask that majorities and minorities subordinate intolerance and power alike to the common good of all.  For us the Constitution is a common bond, without bitterness, for those who see America as Lincoln saw it, ‘the last, best hope of earth.’  So we revere it, not because it is old but because it is ever new, not in the worship of its past alone but in the faith of the living who keep it young, now and in the years to come.

Franklin D. Roosevelt, Constitution Day Address (1937)

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Alexander Hamilton on a Bill of Rights

105px-Hamilton_smallWhat was the original understanding of a bill of rights?  This is one of the questions that my next book will address.  A useful source is Federalist #84, in which Hamilton defended the Constitution against the criticism that it lacked a bill of rights.  Most people know this essay because of his claim that a bill of rights was dangerous because it implied the existence of powers not enumerated.  But Hamilton also said a good deal about what a bill of rights was that gets overlooked.

First, Hamilton attacked Anti-Federalists in New York as hypocrites for lamenting the absence of a federal bill of rights given that the New York Constitution did not have one.  In his description of that fact, Hamilton wrote that “the constitution of New York has no bill of rights prefixed to it.”  The word prefix is critical, because all of the state bills of rights in 1788 came at the start of those constitutions.  Madison wanted something similar in one of the amendments that he proposed in 1789, but Congress rejected a prefix in favor of a suffix.  This partly explains why nobody called the first set of ratified amendments a bill of rights at the time.

Second, Hamilton dismissed the importance of state bill of rights by calling them “aphorisms . . . which would sound much better in a treatise of ethics than in a constitution of governments.”  The upshot, however, is that “aphorisms” were what people in 1788 expected in a bill of rights.  Once again, the first set of amendments lacked those abstract statements, which is why people did not consider it a bill of rights.

Finally, Hamilton anticipated the modern argument that the first two points should not matter.  He said that the Constitution was “in every rational sense, and to every useful purpose, A BILL OF RIGHTS.”  Hamilton went on to explain that the purpose of a bill of rights was to “declare and specify the political privileges of the citizen” and “to define certain immunities and modes of proceeding, which are relative to personal and private concerns.”  While he conceded that someone could say that the Constitution did not go far enough in both respects, the mode of setting forth these guarantees was “immaterial” and “rests merely on verbal and nominal distinctions.”  In other words, who cares whether the bill of rights is a prefix or contains general aphorisms like “All men are born free and equal?”

The answer is that most people in 1791 did care about these formalities.  So did most people in 1868, though John Bingham was a notable exception.  It was only around 1900 that people started adopting Hamilton’s pragmatic view, though the reasons for that change are complex.

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The Supreme Court and the Bill of Rights

As part of the research for my next book, I want to correct something that I said earlier.  I’ve written that the Supreme Court did not call the first set of amendments a bill of rights until 1893.  Turns out that is not quite right.  It was 1897.

For eighteenth and nineteenth century Americans, a bill of rights was something that you put at the beginning of a constitution and that declared general principles in the style of the Virginia Declaration of Rights (for example, “All men are by nature equally free and independent . . .”).  Since the constitutional amendments ratified in 1791 did not look like that, hardly anybody called it a bill of rights.  Justice Story (riding circuit) said in the 1830s that the first set of amendments were “in the nature of a bill of rights,” and a few people did use that lukewarm formulation after that.  In 1893, the Supreme Court repeated this for the first time, but there was a difference between “a bill of rights” and “in the nature [meaning just sort] of a bill of rights.”  I had not picked up on that distinction until recently.

Thus, the first Supreme Court decision that used the modern terminology was Robertson v. Baldwin, an 1897 case which said that “[t]he law is perfectly well settled that the first 10 amendments to the constitution, commonly known as the Bill of Rights . . . “

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Originalism and Irrationality

A thought that occurred to me as I was reading Judge Posner’s opinion on same-sex marriage concerns the relationship between originalism and rational basis review.  Here are my questions:

1.  What is the originalist basis for saying that any irrational law is unconstitutional?  Are there Founding-era cases or authorities that support that proposition?  How about cases from the late 1860s?

2.  If not, then rational basis review must be an exception to originalism.  After all, a court undertaking that inquiry does not ask whether a law was rational given the perspective of 1787, 1791, 1868, etc.  Instead, judges are asked to decide whether a law is rational now.  How is that exception justified?

 

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Scottish Independence

120px-Scottish_Flag_-_detailNext week Scotland will vote on independence.  No matter the outcome, the result will be more federalism in Great Britain.  Even if Scotland votes nae, that vote will still probably be close.  And much like what happened in Canada with Quebec, Parliament will have to give Scotland more autonomy to prevent a future vote from going the other way.  (Indeed, a proposal of this sort is already being floated to sway undecided voters.)  If Scotland votes aye, then one would expect Wales to demand and get more autonomy to stay in the Union, though Wales is a less viable independent states.

One curiosity about the upcoming vote is that Britain is due to hold a general election next year.  If Scotland votes aye on independence, then would it still get to vote in that election?  It will probably take more than a year to finalize Scottish secession, but it would be weird if a departing part of the country gets to form a new government.  (And then, I guess you’d have to have a new election as soon as all of the Scottish MPs leave.)  Of course, Parliament could simply postpone the election (something that cannot be done under our Constitution), but that creates its own difficulties.

One last thought.  At what point will a federal Britain need an English Parliament as distinct from Westminster?  In other words, right now there is no English provincial government–there are only national, Scottish, Welsh, and local ones.  How long is that sustainable if Scotland and Wales get more power within Britain?

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Blogging Hiatus

I am on paternity leave this semester, and taking care of an infant most of the day does not lend itself to deep thinking about the law (or about much else).  You can therefore expect to see me here less often in the next few months, though I’m sure I’ll post a few times once the Justices get back into action.

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Introducing Guest Blogger Nicholas Georgakopoulos

ngeorgakI am pleased to welcome Nicholas Georgakopoulos to CoOp this month.  Professor Georgakopoulos is an expert on bankruptcy, securities regulation, and corporations who writes from a law and economics perspective.  He received his law degree at the Athens University School of Law, his LLM from Harvard, and then taught at the University of Connecticut before moving to the Robert H. McKinney School of Law, where he now holds the Harold R. Woodard Professorship.  Nicholas also owns a winery in Greece (probably a CoOp first, though I can’t say for sure) and is a wonderful colleague.  Hope you enjoy his stint here