Author: Gerard Magliocca

1

“We Hold These Truths”

For those of you who love constitutional law like I do, here is a Christmas present.  I’ve mentioned in some prior posts that Bill of Rights Day in December 1941 was celebrated with a radio drama narrated by Jimmy Stewart that included many Hollywood stars.  At the end of that program, FDR gave an address to the nation that expressly contrasted the Bill of Rights with Nazi Germany.  I thought that that were was no easily accessible audio version, but I was wrong.

Go to this link and scroll down until you reach the program.  The President’s address starts at the 49:00 minute.  Among the highlights:

1.  Jimmy Stewart’s melodramatic performance.

2.  Edward G. Robinson as the outraged political protestor in jail.

3.  The way they used louder background music to drown out the more technical parts of the Bill of Rights.

4.  The discussion of the Second Amendment.

5.  The discussion of how Christ inspired the First Amendment.

Plus a lot more.  Enjoy!

1

Happy Bill of Rights Day!

I cannot consider the Bill of Rights to be an outworn 18th Century “strait jacket” . . . Its provisions may be thought outdated abstractions by some. And it is true that they were designed to meet ancient evils. But they are the same kind of human evils that have emerged from century to century wherever excessive power is sought by the few at the expense of the many. In my judgment the people of no nation can lose their liberty so long as a Bill of Rights like ours survives and its basic purposes are conscientiously interpreted, enforced and respected so as to afford continuous protection against old, as well as new, devices and practices which might thwart those purposes. I fear to see the consequences of the Court’s practice of substituting its own concepts of decency and fundamental justice for the language of the Bill of Rights as its point of departure in interpreting and enforcing that Bill of Rights     . . . . I would follow what I believe was the original purpose of the Fourteenth Amendment — to extend to all the people of the nation the complete protection of the Bill of Rights. To hold that this Court can determine what, if any, provisions of the Bill of Rights will be enforced, and if so to what degree, is to frustrate the great design of a written Constitution.

Justice Hugo Black

7

What is a Prosecutor’s Duty?

The Brown and Garner cases lead me to ask this question:  Suppose I am a prosecutor and I conclude that a police officer is guilty of a crime, but I also conclude that no jury will convict given the evidence.  What should I do?  The most straightforward thought is that I should not bring a charge.  It would be irresponsible to charge someone when you feel sure that you cannot win a conviction (I’m equally sure that prosecutors do this all the time and hope to get a plea, but leave that aside).

On the other hand, can public opinion on these issues be changed without some trials of police officers?  In other words, could a prosecutor say something in private like, “I know that a jury probably will not convict, but we need to bring a charge to express the view of a minority of the community that this sort of conduct is intolerable.”  Is that an appropriate action?  Would that just be grandstanding?

5

The Garner Case

I’m not a criminal law expert, of course, but I thought I would start what amounts to an open thread on the Garner case.  Here is my question:  Can the decision by the grand jury not to indict be defended?  If so, how?

I’ll add one qualification.  A perfectly fine answer to my question is that the grand jury had before it exculpatory evidence that we don’t know anything about.  Since there is no way to disprove that assertion (given that these grand jury proceedings are still secret), let’s assume for the sake of argument that what is in the public record is all of the relevant evidence.  Discuss.

3

The Spirit of the Constitution

Recently I’ve been asking myself this question:  What do people mean when they refer to “the spirit of the Constitution?”  It’s a phrase that was used by John Marshall in M’Culloch v. Maryland and which shows up in a lot of Supreme Court opinions.  Originally it was probably a play on Montesquieu’s Spirit of the Laws, which was influential in the eighteenth century.  But what does the phrase mean now?

My initial thought is that this is either purely rhetorical (“This violates the letter and the spirit of the Constitution”), a statement that something is unconstitutional even though there is no text or precedent that says so, or a statement that something is legal but should not be done.  Take President Obama’s Executive Order on immigration.  If I say that the order violates the spirit of the Constitution, am I saying that it is constitutional or is not?  I need to look more carefully at how this phrase is typically used to develop a solid answer.

0

Two Cheers for the Senate

It is easy to take shots at the Senate.  It violates the one-person, one-vote standard as between the populations of the states.  You often need sixty votes to get anything done.  The rules are arcane.  And so on.  But I want to put in a good word for the Senate.

The principal advantage of the Senate is that the two parties are on a much more equal footing there than they are in the House of Representatives.  Consider that from 1954 to 1994 Democrats controlled the House.  Since 1994, the Republicans have controlled the House for all but four years.  Before 1954, Democrats controlled the House for all but four years from 1932 to 1954.  In other words, the House of Representatives rarely changes hands.  Why is that?  One explanation is that incumbency matters more in low-profile House races.  Another explanation is gerrymandering.

By contrast, the Senate changes hands more frequently (at least since 1980).  The GOP held it from 1980-1986.  Then the Democrats held it from 1986-1994.  Then the the GOP was back from 1994-2001, then Democrats held control in 2001-2002, then the GOP from 2002-2006, then the Dems from 2006-2014, and now the GOP again.  Why is that?  You cannot gerrymander Senate races, for one thing.  Secondly, the states up for reelection in any given year usually favor one party over the other, but rarely the same party.  And third, incumbency probably matters less for Senators.  (Ask Mary Landrieu if her three terms of bringing home the pork helped when her party’s President is unpopular in her state.).  The Senate was obviously not designed to make party competition more lively, but that is the result.  And I submit that this is a healthy thing.

1

The Bill of Rights and the Ninth Amendment

One of the issues that I’m going to explore in my next book (an announcement about that should be coming soon) is the debate between those who think that the Bill of Rights consists of the first ten amendments and those who think that text includes only the first eight amendments.  People rarely explain why they give the definition that they do, so we need to fill in that gap with some speculation.  Part of the answer for the “eight amendments” crowd must be that they did not care for states’-rights or thought that that the Bill of Rights addressed only individual rights.  (Adios, Tenth Amendment.)   Since the first references to the Bill of Rights as “just eight amendments” came during Reconstruction, any antipathy towards the Tenth Amendment is understandable.

A more interesting question is what the “eight amendments” interpretation of the Bill of Rights says about the Ninth Amendment.  If you think that the Ninth Amendment protects unenumerated individual rights (or at least says that they are not precluded) then there is every reason to include that as part of the Bill of Rights.  Nevertheless, I can find only one case that defines the first NINE amendments as the Bill of Rights, even though that reading makes sense.  Those who excluded the Ninth must have either thought that this provision did nothing important or did not protect individual rights.  How common was this view?  Not uncommon, though I’ll note that John Bingham was in the “first ten amendments” camp.  Since the 1970s, though, the “first eight amendments” view had faded away.  Could this be because unwritten rights and states-rights have gained traction since then?

4

Presidential Censure

In the wake of the President’s executive order on immigration, at least one Republican member of Congress has called for a Censure Resolution declaring the President’s conduct either unlawful or wrong.  (I’m not sure which.)  The precedent for this during Andrew Jackson’s presidency, which I talked about in my first book, is very problematic given that only the Senate censured the President, Jackson protested that the resolution was unconstitutional, and the resolution was later repealed by the Senate.

Here’s a broader question.  Is there any limit on Congress’s power to pass a joint resolution that does not create binding law?  In other words, can Congress pass any resolution that just gives its opinion?  Suppose they want to say that the police officer in Ferguson should have been indicted?  Or that Bill Cosby is a rapist?  Or that Putin is not the legitimate president of Russia?  One thought is that resolutions like these are purely symbolic, and so there are no constitutional limits.  But you could say that these statements might matter (for instance, in a civil suit brought against a named person, or in some diplomatic negotiation).  If that is true, though, how does one articulate the limits on Congress’s expressive rights?  Does the President need to denounce one that goes too far?  Should courts not allow such statements to go before a jury?

0

The President’s Executive Order on Immigration

I want to discuss the way in which critics of the President’s Executive Order are making their case, as I think at least one of the arguments raises a genuine dilemma that I keep coming back to in my recent research. Here are some ways of thinking about why what the President did is wrong (if you believe that):

1.  He does not have the statutory authority to issue the order.

Presumably, a slew of lawsuits will be filed on this question.  I have no idea what the answer is, but that will get sorted out by the courts.

2.  He does have the legal authority to act, but doing so is a political mistake.

Maybe, but that will also be proven with time.  If a Republican wins the White House in 2016 (0r in some future election assuming that no new statute is passed), then the order could be reversed.

3.  He does have the legal authority to act, but he should not use that authority because the only legitimate way to do what he did is through legislation.

This is an argument that folks like David Brooks seem to be making, and I find this much more interesting.  Why should this only be done through legislation?  Because executive action in this respect is unprecedented?  Because major policy changes should always be done via statute?

The reason I ask is that I do think that there are “legal but unconstitutional” actions, and I’ve talked about them in prior posts.  (A simple example is when presidential electors in a state decide to vote for someone other than the person who won that state.  They can do that, but the voters would throw a fit.)  I think that this situation arises, though, only when there is extensive precedent against exercising a legal power (basically, a sort of desuetude) or there is a powerful norm that makes the legal action suspect.

Is there a norm that says presidents should not undertake “major” changes via executive orders that are lawful?  I’m not sure.  President Truman’s Executive Order desegregating the armed forces was a very big deal, but that was not done via statute.  Affirmative action at the federal level is, to a large extent, based only on executive orders.  There may be more examples.  Do they cover the immigration case?