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Author: Gerard Magliocca

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Article Submission Season

This is a very insiderish post, so feel free to skip if you want.

The law reviews are opening their submission window (I’m starting to send out), and I’m wondering if people find that getting papers accepted in the Fall is more difficult now than in the past.  More journals seem to fill up in the Spring, and I just have the sense that Fall is no longer a good time to send.  Law review editors–feel free to chime in.

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Citizens United and Freedom of the Press

If you want to read a great article, then go look at Michael McConnell’s paper on Citizens United.  He offers a very convincing explanation of why the result is correct on a narrower constitutional ground than what the Court used. Here is the Abstract:

The central flaw in the analysis of Citizens United by both the majority and the dissent was to treat it as a free speech case rather than a free press case. The right of a group to write and disseminate a documentary film criticizing a candidate for public office falls within the core of the freedom of the press. It is not constitutional for the government to punish the dissemination of such a documentary by a media corporation, and it therefore follows that it cannot be constitutional to punish its dissemination by a non-media corporation like Citizens United unless the freedom of the press is confined to the institutional media. Precedent, history, and pragmatics all refute the idea that freedom of the press is so confined.

The result in Citizens United was therefore almost uncontrovertibly correct. No one disputes that corporations, such as the New York Times Company, can editorialize during an election, and other groups performing the press function have the same right, even if they are not part of the traditional news media industry. A holding based on the Press Clause, though, would not have implied any change in constitutional doctrine about campaign contributions, which are not an exercise of the freedom of the press.

 

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The Location of the Bill of Rights

I thought I was done with this theme for the time being, but my research yesterday pointed to something else I thought was worth mentioning.  When you look at state constitutions, there is one important difference between their bills of rights and the Federal version.  Many states put their bill of rights FIRST (or right after a brief Preamble).  This may explain why people were unwilling or unable to see the 1791 amendments as a bill of rights for a long time.  (States also treat their constitutions like statutes–amendments are just inserted into the document and the original language is altered.  The Federal Constitution, of course, is not like that.)

It’s also worth noting that state bills of rights were modeled (I think) on the Virginia Declaration of Rights of 1776.  They tend to be long, contain general statements about liberty and democracy, and only occasionally ape the language of the federal bill.  Maybe I’ll explore that in greater detail.

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The Rise of the Bill of Rights

Before I return to research mode on this subject, I want to make two other points about why the first set of textual amendments became identified as a “bill of rights” around the beginning of the 20th century.

One hypothesis I am testing is whether state bills of rights drafted after 1791 looked like the first set of amendments.  State constitutions sometimes influence the Federal Constitution, and this may be a prime example.  Let’s say Indiana or California or Colorado wrote a self-styled Bill of Rights that looked a lot like the 1791 amendments.  It would be natural, I think, for people in those states to then see those amendments as a “Bill of Rights” in a way that was not true for the Framers, largely because the first set of amendments did NOT look like the state bills of rights in place at that time (say, in Virginia).

A second thought is that when the United States acquired Puerto Rico and the Philippines from Spain in 1898, Congress passed statutes organizing the governments for both colonies that included a truncated “Bill of Rights” for each.  This was the first time that a major federal statute used that phrase, which then led to many cases construing those provisions as increasing the usage of “bill of rights” to refer to the first set of amendments.  Why did Congress call what was given to these territories a bill of rights?  Probably it was a way of placating critics of imperialism (most notably William Jennings Bryan) and reassuring them that our rule in these places would be just.  (It didn’t work out that way in the Philippines, but that’s another story.)  It would be poetic if foreign conquests ending up strengthening the Bill of Rights at home.

Back to Magna Carta and other topics tomorrow

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The Other Bills of Rights

Since most Americans did not call the first set of amendments the Bill of Rights until the 1890s, what did they call bill of rights up until that time? There were state bills of rights, of course, and the English Bill of Rights of 1689.  Other less obvious candidates included:

1.  Magna Carta–There are cases and commentaries that labeled this as “the great bill of rights.”

2.  The Declaration of Independence. Even John Bingham once referred to this as the bill of rights.

3.  The Civil Rights Act of 1866–I’ve found a case referring to this as “this famous bill of rights.”

4.  The Resolution of the Continental Congress in 1765. Chancellor Kent referred to this as a bill of rights in his Commentaries on American Law.

5.  Article One, Sections 9-10.  Each of these were called a bill of rights in Supreme Court cases prior to the 1890s.

More on this tomorrow, including a surprising turning point in the use of the Bill of Rights following the Spanish-American War.

 

 

 

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What is a Bill of Rights?

102px-James_Madison_engrvNow that I’ve finished drafting “The Anti-Partisan Principle,” I’ve returned to my project on the Bill of Rights.  In prior posts I’ve explained that the Supreme Court did not call the first set of constitutional amendments the Bill of Rights until 1893.  I’ve expanded my search to include all federal cases, and have found only two other clear judicial references to the Bill of Rights as we understand it prior to 1893.

The first came from Justice Story (riding circuit) in 1834, in which he said that “certain amendments of the constitution, in the nature of a bill of rights, have been adopted, that fortify and guard this inestimable right of trial by jury.” (United States v. Gibert).  (Justice Story also described the first set of amendments as being “in the nature of a bill of rights” in his constitutional law treatise.)  The other came from Justice Swayne (riding circuit) in 1866, when he stated:  “The first ten amendments to the constitution, which are in the nature of a bill of rights, apply only to the national government.” (United States v. Rhodes).

The phrase “in the nature of a bill of rights” is interesting.  Why say that instead of saying that these amendments are a bill of rights?  As near as I can tell, the answer is that people in the eighteenth and nineteenth centuries believed that a bill of rights needed to articulate some general principles in a way that they thought ours did not.  When Madison introduced his first draft of the amendments in 1789, he told the House of Representatives that the only portion that constituted a bill of rights was the one that said:

“All power is originally vested in, and consequently derived from, the people.  Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.  The people have an indubitable, unalienable, and indefeasible right to reform or change their Government, whenever it be found adverse or inadequate to the purposes of its institution.”

The first actual set of amendments, by contrast, are more specific.  At some point, though, people either thought of them as general (you can look at the First Amendment of the Due Process Clause that way, for instance), or decided that generality was not what made something a true bill of rights.

More on this tomorrow, as we look at what people thought the Bill of Rights was in this era.

 

 

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Magna Carta–Part I

Next year is the 800th anniversary of Magna Carta, and I thought I’d start a series of posts on that text.  Much of Magna Carta dealt with feudal duties that are obsolete, and the document applied only to the Crown and to the aristocracy (you were largely out of luck as a serf.)  Some of its provisions are quaint, such as “[T]here shall be one measure of wine throughout Our kingdom, and one of ale, and one measure of corn, to wit, the London quarter, and one breadth of dyed cloth, russets, and haberjets, to wit, two ells within the selvages.”

Nevertheless, there are some parts that are surprising, especially with respect to aristocratic women.  For example, “[A] widow, after the death of her husband, shall immediately and without difficulty have her marriage portion and inheritance.”  And “[n]o widow shall be compelled to marry so long as she has a mind to live without a husband.”  You can also see the germ of federalism in the guarantee the “The City of London shall have all her ancient liberties and free customs, both by land and water.  Moreover, We will grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs.”

More next week on property rights, freedom or religion, due process, and other Magna Carta wonders.

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Titles of Nobility Awarded by States

There is a lot of tough news out there these days, so I thought I would try a light-hearted post.  I am an Admiral in the Nebraska Navy.  Folks from Nebraska know what this means, but for the rest of you “admiral” is an honorific awarded by the Governor to folks who make a significant contribution to the state.  (Mine was based on the fact that I wrote an article in the Nebraska Law Review.)  You get a fancy certificate and my Admiralty students find it amusing.

Here’s my question.  Is my title unconstitutional?  The Constitution prohibits states from awarding titles of nobility.  Why does this not apply to Nebraska or to Kentucky, which awards honorary colonel positions?  The answer must be that “Admiral” or “Colonel” is not a title, but why is that?

One thought is that titles in the constitutional sense apply only to the ones awarded in Britain at the Founding.  Thus, Nebraska could not make dukes or barons, but it can make admirals.  Another thought is that a title refers only to something that confers legal benefits.  While those sorts of titles would be invalid, this answer is not sufficient.  If Nebraska awarded knighthoods that were just ceremonial, I think we would still conclude that was unconstitutional.

Accordingly, interpreting “titles of nobility” in the Constitution is partly an originalist task (What was a title in 1787?) and partly a functional one (Is a state doing something that is comparable in spirit to those in a harmful way?).

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Reynolds v. Texas & Pacific Railway Company

In reading Ken Abraham’s excellent article on “Self-Proving Causation,” I was introduced to a delightful Louisiana case captioned above.  Plaintiff and his family were at a station to board a train.  The train was delayed until 2AM, and to get from the station to the platform the passengers had to go down a set of stairs without a railing or lights. When the train arrived, passengers were told to “hurry up” because it was running behind schedule.  Plaintiff’s wife, who was described as “a corpulent woman, weighing two hundred and fifty pounds,” fell and broke her leg.

The railroad argued that ‘but for” cause was not established, since plaintiff’s wife could have fallen in the same way in broad daylight.  The Court rejected this argument:

[W]here the negligence of the defendant greatly multiplies the chances of accident to the plaintiff, and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury.

This is a sound explanation of a kind of “res ipsa loquitur” for causation that was subsequently adopted by other courts.  I was also interested to learn that corpulent was used as a noun, as the opinion later says that plaintiff’s wife was “a corpulent, though not infirm.”  Anyway, the cite is 37 La. Ann. 694 (1885).