Author: Gerard Magliocca

3

The Same-Sex Marriage Cases

Just a quick thought about the Court’s certiorari denials today.  All eyes now turn to the Sixth Circuit, where a case is pending that could produce an opinion upholding same-sex marriage prohibitions.  Depending on when that opinion comes down, the Supreme Court could resolve the constitutional issue this Term.  Or perhaps next Term.

Or not. The Sixth Circuit rarely misses an opportunity to go en banc.  If the panel opinion is taken en banc, then who knows when that opinion would reach the Justices.  Perhaps the losers in the Sixth Circuit will not request en banc review (I don’t know if the Sixth ever goes en banc sua sponte), but that is far from clear.

Bottom line–don’t expect a Supreme Court decision on this until 2016 at the earliest.  That might be bad news the Republican presidential nominee, who may have to take an unpopular stand saying no to same-sex marriage into the general election.

3

Arizona State Legislature v. Arizona Ind. Redistricting Comm’n

I was planning to write a post on how the Constitution uses the word “legislature,” but after reading Chief Justice Hughes’ opinion for the Court in Smiley v. Holm, 285 U.S. 355 (1932), I think that is unnecessary.  Hughes does a good job of laying out the arguments in the context of Article One, Section Four.  Let me summarize the case and then explain why Smiley‘s holding should be extended in Arizona State Legislature (the congressional redistricting case that the Supreme Court just decided to hear).

After the 1930 Census, the Minnesota Legislature passed a congressional redistricting plan that was vetoed by the Governor.  One branch of the legislature then passed a resolution ordering the Secretary of State to implement the plan in spite of the veto.  A suit was filed challenging this plan as unlawful, and the counterargument was that Article One, Section Four gave the Legislature exclusive authority over congressional districting.  The Supreme Court held that the Legislature’s position was without merit.  In part, this was because longstanding practice in the states was that governors could veto in congressional redistricting legislation.  The Court also said that there was “no suggestion in the federal constitutional provision of an attempt to endow the legislature of the state with power to enact laws in any manner other than that in which the constitution of the state has provided that laws shall be enacted.”

The Arizona case can be distinguished from Holm in two ways.  First, there is no longstanding practice for states to remove by constitutional amendment the power of the legislature to undertake congressional redistricting.  Second, one could say that the dictum just quoted assumes that the legislature will play a role in redistricting by referring to laws that are being enacted.  If the state constitution gives that power exclusively to a special commission, then law is not being enacted in the ordinary way.  On the other hand, the dictum can be read broadly to mean “whatever the State Constitution says on this question is consistent with the Federal Constitution.”  Here the Arizona Constitution is provided that no laws on congressional redistricting shall be enacted.  End of story.

Why do I think that the latter interpretation is better?  Mainly on structural grounds.  The remedy for partisan gerrymandering cannot be placed within the authority of the institution that does the gerrymandering.   In practice, there is no judicial review of partisan gerrymandering claims and Congress will not act.  Thus, the only plausible remedy is through an initiative or referendum in states that permit them.  There is the argument that a state can limit partisan gerrymandering in its constitution while still letting the legislature draw district lines.  Perhaps the Arizona referendum goes too far by cutting out the Legislature entirely.  The problem is that state constitutional provisions on partisan gerrymandering (such as in Florida) have not led to any meaningful relief, so I’m not sure this option is real.

This will be a fascinating case if the Court reaches the merits.  I must admit that my thoughts on this issue have changed as I’ve worked through the materials.  At first I was sure that the Arizona amendment was constitutional.  Now I have doubts, though I still think on balance that this amendment is constitutional.

 

7

What is a Legislature?

One of the cases that the Supreme Court agreed today to hear presents the question of whether a state can by referendum create a commission to do congressional redistricting.  (Arizona State Legislature v. Arizona Indep. Redistricting).  Assuming that the Arizona Legislature has standing to bring this appeal, the merits of the case are quite important and interesting.  The constitutional issue is whether Article One, Section Four means that only the state legislature or its agent can do redistricting (not a commission created by a referendum). I will post something long about this case when I have time, though my conclusion is that the Arizona commission is constitutional.

UPDATE:  I should add that I think this is a close question, for reasons that I’ll explain in my next post.

1

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.

2

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.

5

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 . . . “

5

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?