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Author: Gerard Magliocca


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?


Secession from a State

There will be a ballot proposition in California this year asking voters to approve dividing the state into six states. This plan is a one-way ticket to Nowheresville, as Congress would never agree to a division of the state, but it does raise some interesting structural issues.

Article Four of the Constitution provides that “no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”  Why did the Framers feel the need to spell this process out?  The answer, I think, is that in 1787 some of the original 13 states had uncertain territorial claims outside of their boundaries.  Maine, for example, was claimed by Massachusetts.  Kentucky was originally claimed by Virginia.  And so on.  Thus, there was a need for a procedure that would address how to handle statehood petitions coming from these areas, and some of the states probably wanted some assurance that they could not be divested of their claims without their consent.  It’s a robust guarantee of state integrity.

Another point that often gets overlooked, though, is that Article Four expressly permits secession from a State.  If the state and federal governments consent, then a disgruntled part of a state can leave.  (The only example is West Virginia during the Civil War, which was problematic because the illegal government in Richmond did not agree to this secession.) The presence of this state secession provision could imply that secession by an entire state was not permissible, though that sort of textual argument is always tricky.


Antitrust Law and the Four Horsemen

One of the questions that I’m researching about the Four Horsemen is how they got on the Court.  If they were so reactionary (a questionable assumption), then how did they make it through the nomination and confirmation process?  Part of the answer (for Sutherland and Butler) is that Warren Harding was lucky and got to name four Justices in just two-and-a-half years following a Republican landslide.

With respect to Justices Van Devanter and McReynolds, though, the answer reveals something about how judicial litmus tests work.  Both men were seen as acceptable (and, indeed, desirable) because they took a strong position in favor of enforcing antitrust law.  In the 1910s, a “reactionary” was someone who opposed antitrust enforcement.  But McReynolds was an active prosecutor of trusts before and during his term as Attorney General.  Van Devanter, meanwhile, was part of an en banc circuit decision that ruled against the Tobacco Trust, and newspaper comments at the time indicate that this made him “sound” for President Taft.  In addition, the President may have picked him because he wanted a sure vote against the Tobacco Trust at the Supreme Court, as in those days ruling as a circuit judge did not compel a recusal for a Supreme Court appeal of the same case.  (Chief Justice Taft also came to rely heavily on Van Devanter in the 1920s.)


Was the Manhattan Project Unconstitutional?

87px-JROppenheimer-LosAlamosSorry to interrupt the coverage of the missing plane, but . . .

I was reading Garry Wills’ book on Bomb Power:  The Modern Presidency and the National Security State, and he raises the following question:  Was the Manhattan Project unconstitutional because its funding was not disclosed?  Article I, Section 9, says “a Regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”  There are no express exceptions.  By contrast, Article I, Section 5 does contain an exception for recording information in the Journal of each House with respect “such parts as may in their Judgment require Secrecy.”  Consequently, you could say that the lack of such an exception on accounts and budgeting means that there is none.  As far as I know, the Manhattan Project was the first case where military spending was concealed, though I’m not certain.

On the other hand, the Manhattan Project is seen as such a great success that it may constitute a precedent that creates an unwritten exception for public disclosure when national security is at stake.  That is in fact how it’s been treated for the last seventy years.  Moreover, nobody has standing to challenge secret military or intelligence spending as unconstitutional (or at least it is hard to see how somebody could obtain standing).


What Do Car Dealers Do?

120px-Blue_Tesla_Roadster_frontNew Jersey recently barred Tesla from selling cars through its own stores.  Car dealers are not fond of Tesla’s distribution model, since Elon Musk does not want to have dealers.  And since many states require cars to be sold by dealers, this poses a significant problem for Tesla’s future.

Here’s my question.  What is the public purpose behind a statute or regulation that says that you can only buy new cars through a dealer?  I’ll grant that the dealership model has been around for a long time, and dealers are a powerful lobby, but is there anything else to this regulation?  For example, can you say that car dealers do a better job at protecting consumer safety or welfare than a store owned by the manufacturer?  I find that hard to believe.  I’m not sure these dealership statutes are constitutionally irrational, but they are ridiculous.


Privileges or Immunities on the Not-So High Seas

120px-Lake_Chelan_from_hwy971_-_Navarre_Coulee_RoadI want to flag an interesting certiorari petition now pending in Courtney v. Danner.  Washington gives a private ferry company a monopoly for passenger traffic on Lake Chelan, which is a navigable waterway in the state.  This monopoly was challenged on the ground that one of the privileges or immunities of citizens provided under Section One of the Fourteenth Amendment is the “right to use the navigable waters of the United States.”  This right was expressly listed as one of the national privileges in The Slaughterhouse Cases.

The Ninth Circuit rejected the challenge.  The panel held that Slaughterhouse does not extend to the commercial use of a navigable waterway.  In other words, a state cannot (without a really good reason) bar people from taking their boats on Lake Chelen, but it can bar them from making money through navigation on the lake.

I’m not sure what to make of petitioner’s argument.  They don’t explain why Slaughterhouse should be read to include commercial navigation, though the petition does cite me in the text as an authority because I’m the biographer of John Bingham.  (I’m happy to accept authority without responsibility.)  Most of the petition is just a plea for the Justices to clarify Slaughterhouse.  I don’t see why they would take up that invitation, but it would be fun for constitutional scholars if they did.