Author Archive for gerard-magliocca

Blogging Hiatus

posted by Gerard Magliocca

I won’t be posting for the next month or so, unless the Supreme Court does something exciting.  I have three good reasons for taking a break.  First, I have to grade exams.  Second, I’m doing the final proofreading of the book.  And third, I’m getting married.  After the honeymoon, I’ll be back and ready to inflict my opinions on you again.

Here, by the way, is the Amazon ad for the Bingham book.

  May 9, 2013 at 6:38 pm   Posted in: Uncategorized   Print This Post   8 Comments

Presidents Not Signing a Bill

posted by Gerard Magliocca

Over the weekend I was wondering about one way in which a bill no longer becomes a law.  Article I, Section 7, gives the President three options about what to do when Congress passes something.  He can sign it within ten days.  He can veto it within ten days.  Or he can do nothing.  If he does nothing right before a congressional recess or an adjournment, the law can be pocket vetoed.  That happens from time to time.

What presidents do not do anymore is refuse to sign a bill that they don’t like and allow it to become law.  This used to happen in the 19th century.  At some point, though, this practice died out.  Presidents used to refuse to sign as a kind of protest.  Today they sign and issue a signing statement listing all sorts of objections to the legislation.  Setting aside whether you think that is a valid practice, I’m curious why the “no signing” custom became extinct.

  May 6, 2013 at 11:00 am   Posted in: Constitutional Law, Uncategorized   Print This Post   4 Comments

Bingham on the Necessary and Proper Clause

posted by Gerard Magliocca

In recent years, some conservative scholars and bloggers have advanced the argument that the word “proper” in the Necessary and Proper Clause should be read as a limitation on congressional authority.  (In other words, a federal statute can be necessary but not proper.)  I’m not persuaded by this argument, but I thought I’d throw in a quotation from Bingham discussing this topic on the House floor in 1862.

  May 2, 2013 at 12:43 pm   Posted in: Constitutional Law   Print This Post   5 Comments

Legal Fictions and Constitutional Change–Part Two

posted by Gerard Magliocca

A second fiction that is used to manage constitutional change is the “right/remedy disjunction.”  Sure you have a constitutional right, the Court says.  You just don’t have a remedy.  This sounds better than having no right at all, but upon reflection it is not if there will be never be a remedy.

Some leading candidates in this category are Marbury, Worcester v. Georgia, Giles v. Harris, Perry v. United States, and Ex Parte McCardle (sort of).  All of these cases left the right at issue intact but found creative ways to say that there was no remedy.  I’ll go through some more techniques later this week.

  May 1, 2013 at 8:45 am   Posted in: Jurisprudence, Uncategorized   Print This Post   4 Comments

Legal Fictions and Constitutional Change

posted by Gerard Magliocca

Enough with the anti-partisan principle already!  I hear you.

I was asked a few months ago to write an essay on “constitutional change” for a book about the Constitution.  After scratching my head, I decided that the best way to approach this topic would be to describe various fictions that the Supreme Court uses to make (and conceal) dramatic constitutional change. The next batch of posts will about that subject.

Let’s start with a famous example.  In Brown v. Board of Education, the Supreme Court held that racial segregation of public schools was unconstitutional. Chief Justice Warren’s opinion emphasized the importance of education in the Court’s decision.  Over the next four years, other cases were filed challenging state segregation of facilities such as parks, golf courses, drinking fountains, etc.  The Court responded with per curium opinions that invalidated those segregation policies without any explanation except “see Brown.”   The fiction in Brown was that it was just about education.

This is what we might call a “dicta/holding” mismatch.  In other words, the Supreme Court makes the medicine go down easier by understating the breadth of the holding in the breakthrough case and then applying the real holding without explanation.  Step One is easy to understand.  Step Two is necessary to avoid inflaming or antagonizing public opinion (at least that’s the best justification).

More tomorrow.

 

  April 29, 2013 at 4:42 pm   Posted in: Jurisprudence, Uncategorized   Print This Post   No Comments

The Anti-Partisan Principle–Concluding Thoughts

posted by Gerard Magliocca

Before I move on to another topic, I want to wrap this one up by explaining why I am thinking about this issue.  Basically, I’m interested in how judges think about cases where the law or action before them is highly partisan.  Formally, of course, this should not matter.  In practice, though, courts are influenced by this, either because of their own partisanship or because they think that such laws ought to be reviewed more carefully.  Now figuring out what effect, if any, this has on real cases will take a while.  A good summer research project, you might say.

Consider one possibility though. When the individual mandate was before the Supreme Court, many said that it would be wrong for a group of Justices chosen by one party to strike down the major party program of the other party.  One might even say that this concern gave the Chief Justice pause.  Where did that idea come from, at least with respect to people who were not just using it as a convenient argument?

Anyway, tomorrow I’ll turn to a set of posts about something that I’m writing about the mechanics of constitutional change.

  April 28, 2013 at 2:37 pm   Posted in: Constitutional Law   Print This Post   4 Comments

The Anti-Partisan Principle–More Difficult Cases

posted by Gerard Magliocca

Reconstruction also presented some more challenging examples of the anti-partisan principle.  Let’s consider some:

1.  The Exclusion of the South from Congress.

In 1865, the Thirty-Ninth Congress refused to seat the Senators and Representatives of the eleven ex-Confederate States.  They were all Democrats, and the folks doing the excluding were mostly Republicans.  How is that consistent with the anti-partisan principle?

One point worth making about this is that under normal conditions we would think that a partisan use of the Guarantee Clause would be out of bounds, even though it represents a political question.  (I think we would, by the way, say the same thing about the suspension of habeas corpus.) The aftermath of the Civil War, of course, was an extraordinary circumstance where this kind of treatment could be justified, though it was a hard question that President Johnson fiercely contested.  (One could make a similar point about the process that was used to ratify the Fourteenth Amendment, of course.)

2.  The 1876 Electoral Commission

When Rutherford B. Hayes and Samuel Tilden ended up in what was essentially a tie after the 1876 presidential election, Congress created a special body to rule on the disputed electoral votes of three states.  That jury consisted of seven Republicans and seven Democrats.  The last member was supposed to be an independent Supreme Court Justice (David Davis), but when he was appointed to the Senate by Illinois the slot went to Justice Bradley, a Republican.  The commission then voted along party lines to give Hayes, the Republican, the presidency.

Resolving contested presidential problems (as the 2000 election demonstrated) is an especially difficult problem.  Is there a nonpartisan way of deciding something so important?  Doesn’t everyone who would be trusted with the power to decide have a vested interest in the outcome?  Even if people are acting in a neutral way, will people believe that?  I’m not sure that this tells us much, though it is worth noting that Congress at least tried to ensure party balance on the Commission.

3.  Andrew Johnson’s Use of the Pardon Power

In the midst of his war with Congress, President Johnson issued a blanket pardon to almost every ex-Confederate.  They were, again, almost all Democrats, and so was he.  Once again, under normal circumstances this would be considered an abuse of power, and perhaps even an impeachable offense.  Was that true then?  Again, it’s hard to say.

Monday I will talk about what all of this means for courts.

  April 27, 2013 at 5:20 pm   Posted in: Constitutional Law, Uncategorized   Print This Post   8 Comments

The Anti-Partisan Principle–The Admission of States

posted by Gerard Magliocca

I want to make some other observations about what I’m calling the anti-partisan principle before I wrap this up next week and start grading exams.

One perplexing constitutional anomaly is the lack of congressional representation for the District of Columbia.  The Twenty-Third Amendment, of course, gave DC the right to choose presidential electors.  Another amendment was passed by Congress in the 1970s to give DC congressional representation, but that was not ratified. Many statutes have been proposed to accomplish the same goal, but none have passed.  One could imagine a law that admits most of DC as a state so long as some inner core remains to satisfy the requirement that there be a federal district as the seat of government.  (Just giving DC voting rights or admitting the whole district as a state may be unconstitutional, even though there is a question about whether that would be justiciable.  Can the Supreme Court declare a state illegal?)

Why isn’t DC represented by voting members in Congress today?  The answer is that everybody knows that they would all be Democrats.  As a result, the GOP blocks any such proposal.  The same might well be true if Puerto Rico ever applies for statehood, though that is less clear.  Note that this is not true for all state admissions.  Most territories do not have a predictable voting pattern when admitted.  Indeed, the District of Columbia itself was not clearly aligned when the Twenty-Third Amendment was ratified, which probably explains why the amendment was ratified.

Does this mean that we would think it is fundamentally wrong to admit a state when that admission would benefit only one party?  I would say no.  If there were five such states at once, though, that would raise legitimate concerns of “state-packing.”  We got close to this during Reconstruction.  The GOP tried to admit at least two states over President Johnson’s vetoes because they knew they would be represented by Republicans in the Senate, but they only managed to admit one (Nebraska).  Indeed, there was even talk of doing this during Johnson’s impeachment trial, as that could have changed the verdict.

More examples of a hypothetical vein tomorrow.

 

  April 26, 2013 at 2:40 pm   Posted in: Constitutional Law, Uncategorized   Print This Post   10 Comments

Section Three of the Fourteenth Amendment

posted by Gerard Magliocca

I came across an interesting bit of trivia yesterday that I wanted to share.  Section Three of the Fourteenth Amendment states:

“No person shall be a Senator or Representative in Congress . . . who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or an as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” [By a two-thirds vote, Congress may remove the disability.]

Now this provision was obviously directed against ex-Confederate officials.  In 1919, though, the House of Representatives invoked Section Three to exclude Victor L. Berger, who was elected from Wisconsin as a Socialist.  Berger was excluded because he opposed our involvement in World War I, was German, and was convicted under the Espionage Act (though that conviction was reversed by the Supreme Court).  After his exclusion, Berger’s constituents elected him again, and the House excluded him again. He was elected for a third time in 1922 and was finally seated.

It’s worth noting that this means there are really four qualifications for election to Congress.  There’s age, citizenship. residency, and “not being disloyal.”

  April 25, 2013 at 9:39 am   Posted in: Constitutional Law, Uncategorized   Print This Post   7 Comments

Disaster Compensation Funds

posted by Gerard Magliocca

Authorities in Boston have set up a fund (supported by voluntary donations) to compensate the victims of the bombing last week.  Ken Feinberg, the man who administered the 9/11 Fund and the BP Disaster Fund among others, has been called in to help with this one too.

We need more scholarship and regulation of this trend in tort compensation.  While there are advantages in setting each of these funds up as an ad-hoc arrangement and using the expertise of a single individual, drawing up a model statute for states to enact that would create a basic framework for these funds when they are necessary would be better over the long run.

  April 24, 2013 at 5:05 pm   Posted in: Tort Law, Uncategorized   Print This Post   One Comment

Excerpt of “American Founding Son”

posted by Gerard Magliocca

I am pleased to post this excerpt of the book, which consists of the Introduction and Chapter One.  It’s about 10 pages of text.  The book can be pre-ordered from NYU Press here.  The Amazon link should be up soon.

  April 23, 2013 at 3:13 pm   Posted in: Uncategorized   Print This Post   3 Comments

The Anti-Partisan Principle–After the Civil War

posted by Gerard Magliocca

I’ve talked about my research on the anti-partisan principle with respect to political precedents (or constructions) set during the “Revolution of 1800″ and slavery.  Now let’s turn look at two other prominent examples.

1.  The Impeachment of Andrew Johnson.

The chief lesson that we now draw from the acquittal of Andrew Johnson is that presidents should not impeached and removed merely because they are unpopular or at odds with Congress.  In other words, the principles implicated are separation-of-powers and respect for the fixed term of four years.  The story is more complicated than that, as my Bingham biography explains.  But there also a basic problem with the standard description.

The removal of President Johnson would have caused a transfer of party power by Congress.  Johnson was a Democrat who was part of a unity ticket in 1864. After Lincoln’s assassination, the Vice-Presidency was vacant.  If Johnson had been removed, the new President would have been Benjamin Wade, a Radical Republican from Ohio who was the President Pro Tempore of the Senate.  (That was how the line of succession was set up then.)  My description of the Johnson precedent an an anti-partisan event is a better description, although after the ratification of the Twenty-Fifth Amendment the issue is usually moot since a loyal running mate will typically succeed an impeached and removed President.

2.  The Court-Packing Plan

As I pointed out in my initial post on this subject, the number of Supreme Court Justices is not constitutionally fixed at nine.  The defeat of FDR’s 1937 proposal, though, does establish that any attempt to change the number of Justices on a partisan basis is wrong.  Giving a President and his party four new Justices through a statute or extraordinary event, such as a plane crash, is viewed as “unconstitutional,” even though, formally, it is not.  That was not true prior to the 1930s–the Court’s size was manipulated for partisan reasons during the Johnson presidency and people thought that was OK.

Next time I’ll talk about some other modern precedents related to the admission of states.

  April 23, 2013 at 11:02 am   Posted in: Constitutional Law   Print This Post   No Comments

Summer Law Review Submissions

posted by Gerard Magliocca

I’m trying to compile a list of law reviews that will accept submissions during the summer.  (I’m the Associate Dean for Research at my school.)  If anyone can point me to a source or if law review editors want to contact me directly, I’d be much obliged.

  April 22, 2013 at 4:28 pm   Posted in: Law School, Uncategorized   Print This Post   No Comments

Becoming the Bill of Rights

posted by Gerard Magliocca

I’ve posted a revised version of my paper, with a new title.  This draft talks a good deal more about West Virginia State Board of Education v. Barnette and adds some other significant details.

  April 22, 2013 at 2:43 pm   Posted in: Constitutional Law   Print This Post   No Comments

Federalism and Capital Punishment

posted by Gerard Magliocca

I want to add one aside to the capture of the suspect in Boston last night.  It is possible that he will be charged with federal crimes related to terrorism.  If so, then he could be eligible for the death penalty.  Massachusetts, on the other hand, does not have the death penalty for state crimes.

I’ve posted before about the federalism issue presented by this sort of situation.  Of course the U.S. Attorney can seek the death penalty, but is that the right thing to do when the state where the prosecution will occur opposes the death penalty?  Will a Massachusetts jury even apply the death penalty?  Long way to go before those decisions get made, of course, but it’s worth thinking about.

  April 20, 2013 at 10:38 am   Posted in: Criminal Law   Print This Post   9 Comments

Judging Contested Elections

posted by Gerard Magliocca

This is tangential to my last couple of posts, but I want to make an observation about the way that congressional election disputes are resolved.  The Constitution gives each House of Congress the power to “be the judge of its elections, returns, and qualifications of its own members.”  Well into the twentieth century, disputed House or Senate elections were resolved by Congress.  That has not happened, though, in the last thirty years.  (The last case came from a House race in Indiana.)  Since then, every contested election for Congress was decided by state courts under state law.

There are two interesting facets of this.  The first is that this constitutes an extraordinary delegation of authority.  Indeed, this could be the only example of a congressional power being delegated completely (and without any guiding principle) to the states.  Second, the decision to do this may be based on the idea that Congress cannot fairly judge such issues.  Why?  Because it would just be done on a party-line vote.

  April 19, 2013 at 3:15 pm   Posted in: Constitutional Law, Uncategorized   Print This Post   3 Comments

The Anti-Partisan Principle and Slavery

posted by Gerard Magliocca

Another set of examples that illustrates what I’m calling the anti-partisan principle (or norm) comes from the slavery era.  While we think of partisanship in terms of party, in that era the fundamental division in society was between slave states and free states.  The Constitution made some efforts to preserve a balance of power between those factions, most notably in the Fugitive Slave Clause, the Direct Tax Clause, which made it difficult for Congress to tax slaves, and the Importation Clause, which guaranteed the right to import slaves for a minimum of twenty years.

This structural design was extended in a series of measures adopted during the ante-bellum period.  The Missouri Compromise of 1820 and the Compromise of 1850 each consisted of a series of laws that were enacted as a package to maintain the slavery/freedom balance.  One component of these deals was that the number of free and slave states should be equal.  That equilibrium lasted from the 1810s until 1850.  When California was admitted in 1850, a further arrangement was made that one of its senators would support slavery and one would oppose it, which, if you think about it, was a pretty significant limit on state sovereignty.

The Civil War resulted from the breakdown of this fundamental principle that the slave and free factions must be balanced.  Lincoln famously said that the Union could not remain half free and half slave. Dred Scott declared the Missouri Compromise unconstitutional.  And Minnesota was admitted in 1858 as a free state while Kansas was not admitted as a slave state.  The violation of the anti-partisan norm triggered the South’s secession.  Consider the following question.  Why did the South secede in 1860-61?  They could block any constitutional amendment on slavery.  Lincoln pledged in his First Inaugural that he would not touch slavery in the states where it already existed.  These guarantees, though, were not good enough because he no longer would guarantee that slavery interests would be given equal weight within the Federal Government.  So they left.

The difference between political partisanship and slavery is that the Framers were unfamiliar with the former but familiar with the latter.  That is why you could find explicit efforts to balance the factions in one but not the other.

Tomorrow I’ll move on to another set of examples that postdate

 

  April 18, 2013 at 1:16 pm   Posted in: Constitutional Law, Uncategorized   Print This Post   One Comment

The Anti-Partisan Principle

posted by Gerard Magliocca

To return to my posts from last week, I’m working through the idea that there is an unwritten constitutional principle (or, if you do not like that phrase, a powerful norm) holding that changes to the structure of government cannot be undertaken when they would lead to a substantial and foreseeable partisan advantage.  This is a logical extension of Federalist #10.  Madison argued there that an object of constitutional design was to prevent any one faction from gaining too much power.  Sometimes, though, the constitutional design is inadequate.  At that point, though, public opinion, elite opinion, and the courts step in to preserve the balance of power.

The first set of precedents expressing this anti-partisan tenet with respect to political parties came in the aftermath of Jefferson’s election in 1800, which marked the first transfer of power from one party to another.  Consider one of the famous incidents from that era–the “Midnight Judges” nominated by President John Adams.  After the election, the Federalist Congress enacted (and Adams signed) the Judiciary Act of 1801.  This Act, among other things, created many new federal judgeships.  Adams nominated and the Senate confirmed men for these seats on the eve of Jefferson’s Inaugural.

Today we think that this action was deeply wrong.  Why?  The Judiciary Act of 1801 was not unconstitutional.  Nor was there anything illegal about the subsequent appointments.  The “Midnight Judges” are an anti-precedent because they were done by a lame-duck President and Congress for a significant and definite partisan advantage.  Why is that important?  Because it helps explain why the repeal of the Judiciary Act was constitutional. When scholars look at Stuart v. Laird, the 1803 case that upheld the repeal, it is often seen as an example of the Supreme Court folding in the face of political pressure. Viewed in light of this anti-partisan principle, the Court’s decision was sound.  When in doubt, brazen partisan power grabs cannot stand.

Consider another example from this era–the impeachment of Justice Samuel Chase in 1805.  The failure of the Senate to convict Chase (a Federalist) is now seen as a precedent establishing that Justices may not impeached for expressing views that are unpopular.  Another way of viewing that acquittal, though, is that the impeachment and removal of Justices of one party by the other party is fundamentally wrong because it would allow a party to take advantage of a temporary supermajority in Congress to purge the Court and replace the Justices en masse.

Tomorrow I will take a look at additional examples, as I build toward articulating something about Chief Justice Roberts’s opinion in Sebelius.

  April 17, 2013 at 2:41 pm   Posted in: Constitutional Law   Print This Post   9 Comments

Papers of the Justices

posted by Gerard Magliocca

I want to draw your attention the following article by Kathryn Watts on “Judges and Their Papers.”  It’s fair to say that I’m biased as a historian in thinking that researchers should have broad access to legal materials, but . . .

Here’s the Abstract:

Who should own a federal judge’s papers? This question has rarely been asked. Instead, it has generally been accepted that the justices of the U.S. Supreme Court and other federal judges own their own working papers, which include papers created by judges relating to their official duties, such as internal draft opinions, confidential vote sheets, and case-related correspondence. This longstanding tradition of private ownership has led to tremendous inconsistency. For example, Justice Thurgood Marshall’s papers were released just two years after he left the bench, revealing behind-the-scenes details about major cases involving issues like abortion and flag burning. In contrast, Justice David Souter’s papers will remain closed until the 50th anniversary of his retirement, and substantial portions of Justice Byron White’s papers, including files relating to the landmark case of Miranda v. Arizona, were shredded. In addition, many collections of lower federal court judges’ papers have been scattered in the hands of judges’ families. Notably, this private ownership model has persisted despite the fact that our country’s treatment of presidential records shifted from private to public ownership through the Presidential Records Act of 1978. Furthermore, private ownership of judicial papers has endured even though it has proven ill-equipped to balance the many competing interests at stake, ranging from calls for governmental accountability and transparency on the one hand to the judiciary’s independence, confidentiality and collegiality on the other.

This Article is the first to give significant attention to the question of who should own federal judges’ working papers and what should happen to the papers once a judge leaves the bench. Upon the 35th anniversary of the enactment of the Presidential Records Act, this Article argues that judges’ working papers should be treated as governmental property — just as presidential papers are. Although there are important differences between the roles of President and judge, none of the differences suggest that judicial papers should be treated as a species of private property. Rather, the unique position of federal judges, including the judiciary’s independence, should be taken into account when crafting rules that speak to reasonable access to and disposition of judicial papers — not when answering the threshold question of ownership. Ultimately, this Article — giving renewed attention to a long forgotten 1977 governmental study commissioned by Congress — argues that Congress should declare judicial papers public property and should empower the judiciary to promulgate rules implementing the shift to public ownership. These would include, for example, rules governing the timing of public release of judicial papers. By involving the judiciary in implementing the shift to public ownership, Congress would enhance the likelihood of judicial cooperation, mitigate separation of powers concerns, and enable the judiciary to safeguard judicial independence, collegiality and confidentiality.

  April 14, 2013 at 9:38 pm   Posted in: Constitutional Law, Uncategorized   Print This Post   10 Comments

The Anti-Partisan Principle

posted by Gerard Magliocca

Yesterday I said that I would do a set of posts on unwritten constitutional norms.  (I won’t say “unwritten unwritten,” as that went over like sour milk.)  One of my observations was that the Court-packing crisis of 1937 should be understood as holding that fundamental structural change may not be undertaken in a knowingly partisan way.  In other words, the problem is not whether Congress expands the size of the Supreme Court.  The problem is doing that in a way that is intended to benefit a particular faction.

This anti-partisan principle connects many of the other powerful precedents set by the political branches.  Consider some examples:

1.  Justices may not be impeached and removed due to mere political or ideological disagreements.  (The failed impeachment of Samuel Chase).

2.  The President may not be impeached and removed due to mere political or ideological disagreements.  (The failed impeachment of Andrew Johnson, though this only works as I’ve framed it if that removal would turn the White House over to a different faction, which was true in 1868.)

3.  The antebellum rule that a state could not be admitted if that would upset the balance between free and slave states. (1820-1861)

4.  The admission of Hawaii (a Democratic state) and Alaska (a Republican state) as a pair in 1959.  (This also, BTW, probably explains why the constitutional amendment proposed by Congress to give DC congressional representation was not ratified by the states in the 1970s.  Everybody knew that would mean two more Democratic Senators for decades.)

5.  The way in which the size of the House of Representatives was adjusted from 1789 until 1929 (when the number was basically fixed at 435).   (I’ll explain that more later.)

None of these are judicially enforceable, of course.  A more difficult question is whether, as I’ve previously suggested, this could also explain why the Chief Justice refrained from striking down the individual mandate.

Anyway, no more posts until Monday.  The Masters is on, you know.

  April 11, 2013 at 9:04 pm   Posted in: Constitutional Law, Uncategorized   Print This Post   3 Comments

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