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Author: Gerard Magliocca


Woodrow Wilson and Justice McReynolds

98px-President_Woodrow_Wilson_portrait_December_2_1912I’m starting to go through Justice McReynolds’ papers, and one thing that I would like to figure out is how he got on the Court.

The most common story of McReynolds’ appointment goes like this.  He was a jerk as Attorney General, so when a Supreme Court vacancy opened up Woodrow Wilson took that opportunity to get rid of him.  This does not strike me as a plausible explanation.  Even if you took Supreme Court appointments lightly, which I don’t think Wilson did, I doubt that you would hand this plum to someone you could not stand.  What are the other possibilities?

1.  McReynolds, as I mentioned in a prior post, had a fine reputation as a trust buster in 1914.  This may have convinced Wilson that he was a progressive (or progressive enough).  I’m less clear on whether McReynolds was a good Attorney General–I still need to work through that.

2. The vacancy to which McReynolds was appointed was a southern seat (Horace Lurton, a Kentuckian, died).  As a result, the fact that McReynolds was from Tennessee gave him a leg up.

3.  Wilson’s wife died a few weeks before McReynolds was nominated.  Some suggest that (in his grief) Wilson simply was not thinking clearly about the nomination or any public matter at that time.

Anyway, I’m curious to see what the press had to say about the McReynolds nomination.


MPSA Annual Conference

I wanted to note briefly that I’m sorry I was unable to present at the Midwestern Political Science Association last week. I was scheduled to talk about Bingham on a Reconstruction panel, but my wife and I recently had a baby, and I had to cancel my talk as a result. If you see me around here less often in the coming months, that’s the reason.


The Civil Rights Act of 1964

I just finished reading Clay Risen’s terrific book on the debate that culminated in the enactment of what he calls “The Bill of the Century.”  Here are some things that I learned:

1.  “Judge” Howard Smith, the segregationist chairman of the House Rules Committee, famously amended the Act to include “sex.”  I’ve always understood that this was a poison pill that failed to derail the bill.  It turns out, though, that Smith was a strong advocate for (white) women’s rights throughout his career.  So he may have been sincere (or at least have had mixed motives).

2.  Much of the debate early on centered on whether the Act should rely on the Commerce Clause or on Section Five of the Fourteenth Amendment.  The Commerce Clause was chosen for a couple of reasons, but one factor that I had not considered was that the Fourteenth Amendment was seen as a “Republican” way of handling the problem whereas the Commerce Clause was seen as the “Democratic” way.  That just shows how far we’ve come in the last fifty years.  Nobody today thinks of the Fourteenth Amendment in partisan terms.

3.  The book argues that LBJ gets too much credit for the passage of the Act, and that many other people (Hubert Humphrey, Mike Mansfield, Nick Katzenbach, Everett Dirksen) did more.  I think this assessment is correct, though I’m much more skeptical of the book’s implication that JFK would have gotten the Act passed had he not been killed.  Partly I suppose that’s because I’m not a JFK fan (for one thing, he gave us Justice Byron White, one of the worst modern Justices on a par with Blackmun and Burger.)



The Constitutional Convention Countdown

Scene_at_the_Signing_of_the_Constitution_of_the_United_StatesLast week the Michigan Legislature voted to call for a constitutional convention under Article V to propose a Balanced Budget Amendment.  This means that 34 states have now issued such a call.  Or maybe it’s less than that.  Let me explain.

The problem is that some states have repealed their prior calls for a Balanced Budget Amendment.  Thirty-four is the right count only if none of those repeals are valid.  But are they valid?  I think it’s up to Congress.  Coleman v. Miller held that Congress gets to decide whether a state has ratified an Article Five Amendment.  During Reconstruction, Congress counted some states as “yes” votes for the Fourteenth Amendment (e.g., Ohio) even though they had repealed their ratification. Coleman concluded from this precedent that the question of state ratification was a political question.  The same logic applies, in my view, as to whether a state has asked for a constitutional convention.

Giving Congress discretion over this question, of course, does not answer the question of whether a state repeal is valid.  There are good reasons to think that a state should be able to issue a repeal of a convention summons.  Insisting on the opposite view would mean that one legislature could bind all of its successors, which is generally a no-no in Anglo-American law. On the other hand, the Fourteenth Amendment precedent takes the opposite stance–those repeals were not allowed.  It’s fair to say, though, that Congress will probably bend over backwards (as long as Democrats control the Senate anyway) to find a way to not count in enough states for a constitutional convention.


Research Help at the Minnesota Historical Society

I want to thank everyone at UVA who responded to my post asking for help in looking at Justice McReynolds’ papers.  Now I have a similar request for any student in Minneapolis.  Justice Butler’s papers (though there are not many) are held by the Minnesota Historical Society.  I would like someone to look at the collection, give me a sense of what’s there, and photograph some or all of the documents.  If anyone is interested, then please email me at


Business Method Patents Are In Trouble

The transcript of the oral argument in CLS Bank v. Alice Corp. is now available.  My takeaway is that the Court may revisit its statement in Bilski that business methods are patentable.  Justice Ginsburg said twice that four Justices (including herself) had signed Justice Stevens’ concurrence in Bilski that took issue with the Court’s position, and did so in a way that sounded like she wanted a do-over.  More significant, Justice Kennedy (who wrote Bilski) kept pressing for an example of a valid business method patent and seemed unsatisfied with the answers.

Holding that business methods are unpatentable would be better than the alternatives of doing nothing (i.e., invalidating this patent on the narrow ground that is comparable to the patent invalidated in Bilski), getting rid of all software patents (nobody seemed interested in that), or coming up with a test for abstract ideas that could actually work (an almost impossible task).  And getting rid of business method patents would go a long way towards solving the problems posed by patent trolls.

Of course, this is what I thought the Court would do in Bilski.  We’ll see if there are five votes this time.

UPDATE:  After reading the transcript again, I’m less optimistic that the Court will do anything significant.  Maybe the only thing they can get five votes for is a judgment that this patent is no more concrete than the one in Bilski.




Legislative Separation of Powers

I find nowadays that many of my constitutional interests revolve around comparing the United States and Britain.  In that spirit, I want to raise the following issue about rule making within Congress.

A fundamental principle of our legal system is that no person should be a judge in his or her own case.  This idea dates back to Blackstone, and is behind many of our legal institutions and ideals.  There is, though, one significant exception.  Each House of Congress makes and applies its own rules.  This means that the majority can be a judge in its own case when the rules are inconvenient.  You can make a reasonable argument that the current lack of cooperation in Congress stems from this merger of procedure and partisanship.  The Speaker largely makes the rules in the House, and Senator Reid does the same in the Senate.  And you wouldn’t call either of these guys nonpartisan.

How do legislatures deal with this problem in other countries or in the states?  There are several options.  One is to say that the rules may only be changed by a supermajority, or may only be changed at a particular time (not just any time the majority wants).  Another thought is that there could be a norm that the rules should not be changed by the majority (even though it can be done that way).  A third possibility is that you delegate rules decisions to someone who is insulated from the majority in some way (a committee chairman or a neutral presiding officer).

None of these are being done now.  I wonder whether each House of Congress could, to so speak, do with a stronger dose of internal separation of powers.


Research Help at the University of Virginia

This post is directed to any student at the University of Virginia. (Go Cavs!). There are 7 boxes of Justice McReynolds’ papers at the UVA Law Library.  As my wife and I just had a baby, my ability to travel and look at these materials will be close to nonexistent for a while. Since the collection is relatively small, though, I thought I might hire a student to photocopy the collection and mail it to me. If anyone is interested, please email me at


Originalism and a Road Draft

One tradition of the common law was that all able-bodied men could be compelled to provide labor to fix roads and bridges. In 1916, a Louisiana statute codifying this authority was challenged as unconstitutional under the Thirteenth and Fourteenth Amendments.  The Court, in an opinion by Justice McReynolds, rejected these claims (Butler v. Perry).  The 13th Amendment, the Court said: “[I]ntroduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state, such as services in the army, militia, on the jury, etc.”  Because drafting men for road work was a long established practice prior to Reconstruction, there was no constitutional problem.  Likewise, the Fourteenth Amendment did not bar the practice, since “to require work on the public roads has never been regarded as a deprivation of either liberty or property.”

I’m wondering whether an originalist would have to say that a state statute drafting people into road work today (or executing an existing statute that authorized such a draft) would be constitutional.  It is fair to say that this is one of those situations that would probably never happen even if authorized, but then again how is that different from the broccoli hypothetical under the Commerce Clause?