Author: Gerard Magliocca

7

Poll Taxes and Voter IDs

The voter ID laws from Wisconsin and Texas are sure to reach the Supreme Court at some point, and so I’m trying to think through how the Twenty-Fourth Amendment (banning poll taxes in federal elections) might apply to these laws.

Let’s focus on folks who do not have an ID that a state considers valid.  (Maybe the person is elderly, for example, and never obtained a driver’s license.)  Suppose the state says that this person can get an ID for free, but to do so they have to go through some process.  If that process were onerous, then I think it fair to conclude that this would impose a poll tax.  The question is how burdensome is too burdensome.  Is the standard that if somebody could not vote as a result, then there is a violation?  Or do we judge this by some reasonableness standard?

One thing about the Twenty-Fourth Amendment that makes it different from other constitutional prohibitions is that it imposes a clear rule.  A $1 poll tax is just as unconstitutional as a $500 poll tax.  This may suggest that a conditional poll tax (in lieu of paying the fee for an ID, do this) should be assessed in a similar way black and white way.  In other words, a balancing test is not appropriate in this context.

Of course, this analysis does not cover a situation where someone has an ID and just forgets to bring it to the polls.  In that scenario, there is no poll tax and no constitutional violation–the issue falls under the Voting Rights Act.

 

6

John Bingham and Thomas Jefferson

101px-John_Bingham_-_Brady-HandyI think I’ve come across an interesting inflection point in constitutional discourse (or what others might call an example of intergenerational synthesis.)

In 1871, John Bingham gave an address on the House floor in support of the Ku Klux Klan Act that offered a detailed explanation of his view that Section One of the Fourteenth Amendment extended the Bill of Rights to the States.  At one point, Bingham declared:  “Jefferson well said of the first eight articles of amendments to the Constitution of the United States, they constitute the American Bill of Rights.”

Here’s the problem:  I cannot find any evidence that Jefferson said this.  He was an advocate of a bill of rights after the Constitutional Convention, and many of the subjects that he wanted addressed were covered by the first set of amendments.  As far as I can tell, though, he never said that the first eight were a bill of rights.

What was going on?  Maybe Jefferson did say this and I can’t find the quote.  Maybe Bingham thought Jefferson said this but was mistaken.  Or maybe Bingham just made this up.  In any event, what I find fascinating about this is that many people today believe that Jefferson must have said something like this.  Why do they think that?  Partly because of the importance that we attach to the Bill of Rights.  It also may be that we think Jefferson said this because John Bingham told us so.  In so doing, though, Bingham was changing the Constitution’s meaning.

5

Dueling Law

120px-Pistolet_à_silexI’ve been going through the state bills of rights written in the nineteenth century and have come across some wild provisions.  Take this one from the Iowa Bill of Rights of 1846:

“Any citizen of this State who may hereafter be engaged, either directly or indirectly, in a duel, either as principle or accessary before the fact, shall forever be disqualified from holding any office under the constitution and laws of this State.”

Dueling was a practice said something important about how elites viewed dispute resolution early in our history and provides a great teaching lesson about the limits of libertarianism.  (Why should dueling be banned if both parties consent?) Of course, if the Federal Constitution had such a provision that would have meant no President Andrew Jackson, no Vice-President Aaron Burr (after 1804), no Senator Thomas Hart Benton, and more.  (If you include seconds in duels, then even more people would have been excluded from office.)

0

The (Non)Finality of Supreme Court Opinions

I finally got around to reading Richard Lazarus’s draft paper (forthcoming in Harvard Law Review) on how the Justices revise their opinions after they are issued and before they are officially published.  This is well worth your time.  Lazarus identifies a significant problem, worked hard to identify opinion edits that are not made in a transparent process, and makes some sound suggestions for reform.  I also learned a lot about the role of the Supreme Court Reporter, which I’ve always found a bit obscure, and learned that there is a formal process to point out errors in opinions.

0

Mea Culpa

My ongoing research on the meaning of the Bill of Rights has changed my view of something that I said in my book on William Jennings Bryan.  Admitting error is an important part of blogging and scholarship, so let me explain.

One theme in the book is that incorporation suffered a setback due to the defeat of the Populist Party.  Basically, the idea is that there was some support for extending parts of the first set of amendments to the states into the 1890s on the Supreme Court, but that support dried up in the wake of the civil unrest that rocked the country in those years.  I then went further and said that Bryan’s defeat in 1900 on imperialism deepened this trend.  Here’s what I said:

“The issue of whether the Constitution should extend to the territories (and thereby limit congressional discretion was similar to the issue of incorporation.  For both, the issue was whether constitutional rights or provisions should be expanded to new political units (the states or the territories).  And the Court’s rejection, in a series of cases, of jury trials and other constitutional rights in the Philippines was partly prompted by a desire to curb dissent, as were some of its decisions with respect to the Populists.  In fact, after the Spanish-American War, the United States met a serious revolt in the Philippines with a harsh response that was not at all consistent with the Cruel and Unusual Punishments Clause.  Both abroad and at home, the Bill of Rights was on the defensive by 1900.”

What’s wrong with this?  It puts too much emphasis on constitutional law and not enough on what Congress did in extending part of the Bill of Rights to the Philippines in 1902.  That was an important boost to the Bill of Rights–far more important than anything since Bingham’s advocacy for incorporation during the Thirty-Ninth Congress.

0

Formal Bills of Rights vs. Instrumental Ones

Below the fold I will post the Introduction of my revised paper, which I’m tentatively calling “The Bill of Rights Reconsidered.”  (It’s not a great title, but it’s good enough for now.)  As some readers may recall, last year I drafted a paper that focused on how Franklin D. Roosevelt elevated the status of the Bill of Rights in the 1930s.  Once I decided to turn this project into a book, I realized that my draft was inadequate.  It noted that most people did not call the first set of amendments a bill of rights until the 1890s, but did not offer an explanation for that curious fact.  I also did not explain why the terminology starting changing around 1900.  Those were pretty significant holes, but now I think that I have got them covered.

A theme of the paper is that our understanding of a bill of rights moved from a formal definition in the eighteenth and nineteenth centuries to a practical one in the twentieth and twenty-first.  Alexander Hamilton anticipated this change in Federalist #84, which I think has been misread for a long time.  (More on that later this week.)

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9

William Jennings Bryan and the Bill of Rights

91px-W.J._Bryan_cropI’ve made an interesting discovery about the history of the Bill of Rights that I want to share.  In prior posts, I’ve noted that people did not start commonly calling the first set of amendments a bill of rights until around 1900.  One step in that direction was when Congress created a territorial government for the Philippines in 1902 and gave some of the guarantees of the first set of amendments to that colony (though the Act did not call this part of a bill of rights, the Supreme Court did in 1904).  More broadly, the Court’s cases on Puerto Rico and the Philippines define the bill of rights in the modern sense more often (though they did not speak to the importance of the bill of rights in the way that we do).

In observing all of this, my initial thought was that there might be a connection between the transformation of the bill of rights and colonialism.  The acquisition of colonies was controversial at the time, and extending basic rights could have been a way to satisfy critics and quell the rebellion that was ongoing in the Philippines.  But is there any evidence  that people cared about this issue then?

I think so.  A month after William Jennings Bryan was nominated for president by the Democratic Party in 1900, he gave his acceptance speech in Indianapolis.  (In those days, presidential candidates did not accept their nomination at the convention.)  Most of Bryan’s speech was an attack on imperialism, and he stated his line of attack this way:

There is no place in our system of government for the deposit of arbitrary and irresponsible power. That the leaders of a great party should claim for any president or congress the right to treat millions of people as mere “possessions” and deal with them unrestrained by the constitution or the bill of rights shows how far we have already departed from the ancient landmarks and indicates what may be expected if this nation deliberately enters upon a career of empire.

Why is this important?  As far as I can tell, this is the first time that any major presidential candidate said anything about the bill of rights as we understand that term.  Moreover, Bryan made the issue that Congress addressed two years later–colonies could not be governed without the protection of (at least part of) the bill of rights.  Bryan, in essence, made the definition of the first set of amendments as a bill of rights into a significant political issue.

 

1

“Unpublished” Supreme Court Orders

Supreme Court watchers are expressing some consternation about the Court’s willingness to take significant steps in recent cases (same-sex marriage, abortion, and voting rights) without explanation.  This is especially true with respect to granting or denying stays, though in the same-sex marriage cases that concern extends to the denial of certiorari.  What in blazes is going on here, they ask?  Doesn’t the Court owe us some explanation?

I wonder if the Justices should consider an option used in the circuit courts–an unpublished order–to provide more transparency in these situations.  One can understand why the Court would not want to use a published opinion to explain a decision about a stay (which is only a preliminary or tentative act) or the denial of certiorari (as that would set a precedent without the benefit of full briefing and argument).  I can, though, imagine doing so through an order that says “this may not be cited as precedent” if the Court felt an explanation was necessary.  Granted, people would still try to cite these orders (as a law clerk, I often saw attorneys citing unpublished orders), but a norm could develop that would make these statements non-binding.

Most of the discretionary actions that the Court takes would not warrant an explanation (certiorari denials, petitions for rehearing, original habeas petitions), but there is the occasional exception.  Right now only a dissenter can open a window into what goes on with respect to these important choices.  I’m not sure that is always good enough.

2

One More Thing on Redistricting . . .

The Court has held that a state can use a referendum as part of its redistricting process.  See Davis v. Hildebrandt, 241 U.S. 565 (1916).  In Davis, a referendum was used to reject a redistricting plan drawn up by the Ohio Legislature.  Thus, one cannot say that Article One, Section 4 prohibits states from using a referendum to limit the Legislature in this context.  Maybe the Legislature must be the one to draft the redistricting plan–the difference in the Arizona case is that the Legislature is not permitted to draft anything.  But clearly the Legislature does not have the exclusive power to redistrict or the final say over redistricting.  Is drafting really so different?

4

The Law of the Land

I thought I would flag the fact that Akhil Amar has a new book coming out that is available for pre-order on Amazon.  Here is the summary of The Law of the Land:  A Grand Tour of Our Constitutional Republic:

From Illinois to Alabama, and from Florida to Utah, our laws and legal debates arise from distinctive local settings within our vast and varied nation. As the renowned scholar Akhil Amar explains, Abraham Lincoln’s argument against the legality of succession can be traced to his Midwestern upbringing, just as a close look at the Florida legislature and state Supreme Court reveals the fundamental wrongness of the Bush v. Gore decision.

Amar profiles Alabama’s Hugo Black, the dominant constitutional jurist of the twentieth century, and California’s Anthony Kennedy, the powerful swing justice on the current Court. He probes Brown v. Board of Education, and explores the divisiveness of the Second and Fourth Amendments. An expert guide to America’s constitutional landscape, Amar sheds new light on American history and politics and shows how America’s legal tradition unites a vast and disparate land.