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Author: Gerard Magliocca


M’Culloch and The Federalist

96px-JohnMarshallM’Culloch v. Maryland is widely acknowledged as one of the most important opinions in constitutional law, but perhaps its most unheralded contribution was the canonization of The Federalist.  Lawyers were aware of Madison, Hamilton, and Jay’s work before 1819, but there is no indication that the essays were considered a special or authoritative source then the way they are now.  When did that change?

A good argument can be made that Chief Justice Marshall’s comments about them in his taxation discussion made the difference.  Here are some excerpts:

“In the course of the argument, the Federalist has been quoted; and the opinions expressed by the authors of that work have been justly supposed to be entitled to great respect in expounding the constitution. No tribute can be paid to them which exceeds their merit; but in applying their opinions to the cases which may arise in the progress of our government, a right to judge of their correctness must be retained; and to understand the argument, we must examine the proposition it maintains, and the objections against which it is directed.”

Marshall then rejected Maryland’s interpretation of The Federalist as applied to the taxing power of the states, concluding with this:

“Had the authors of those excellent essays been asked, whether they contended for that construction of the constitution, which would place within the reach of the states those measures which the government might adopt for the execution of its powers; no man, who has read their instructive pages, will hesitate to admit, that their answer must have been in the negative.”

Citations to The Federalist in the Supreme Court picked up noticeably after M’Culloch lavished praise on the collection, though I can’t be sure about cause and effect.



ALI Annual Meeting

Next week I’ll be attending my first annual meeting as a member of the American Law Institute, and I’m intrigued to see what actually goes on there.  If any CoOp readers will be there, please let me know, as I would love to meet you.




What Happened to Guantanamo Bay?

Remember 2008?  (That was before the iPad.)  At that time, the existence of a military detention facility for alleged enemy combatants in Cuba was considered a scandal by many Americans.  Candidate Obama vowed to close the prison within a year of taking office.  The Court decided Boumediene v. Bush, the latest in a series of cases filled with denunciations of executive high-handedness.  And plenty of eloquent voices were heard in the media and in the academy denouncing what Guantanamo represented.

Today nobody cares.  The President almost never discusses Guantanamo.  The Justices are no longer interested in the detainees (they have not taken a new case since 2008).  And the folks who pilloried George W. Bush for creating the prison have largely fallen silent. Initially there was a fair amount of criticism directed at President Obama for not fulfilling his campaign pledge, but now that’s dissipated to something like sheepish embarrassment.

I wonder what lesson should be drawn from this.  Does this vindicate the Bush Administration to some extent?  Does it mean that Guantanamo was just a handy partisan club and nothing more?  Were the Justices just grandstanding?


The Specificity of the Bill of Rights

Lately I’ve been posting about some conceptual puzzles surrounding the Bill of Rights.  When did the first set of amendments start getting called the Bill of Rights?  Why do we call the first set of amendments the Bill of Rights?  And does the Bill of Rights refer to the first eight or the first ten amendments?

Now I want to introduce another issue:  Is the Bill of Rights specific?  You can find many cases and other cites that refer to its provisions as specific.  And while some parts of the Bill of Rights are specific (take the Third or the Seventh Amendments), I’m not sure that description is correct overall.  The Due Process Clause is not specific.  Neither are the freedom of speech or the free exercise of religion.

What do people mean when they say that the Bill of Rights is specific?  For some, the specificity justifies judicial review enforcing these guarantees against legislative acts.  In other words, some people call the Bill of Rights specific to rebut the counter-majoritarian difficulty.  For others, describing the Bill of Rights as specific is a tool to justify unwritten rights.  Here specificity means that the Bill of Rights is not comprehensive and cannot meet modern needs.  A final thought about specificity is that some use the term to say that courts should only enforce the most specific provisions and should leave the broader ones (like due process) out in the cold.

Anyway, I’ve decided that the Bill of Rights as a whole (not the individual provisions) will be the subject of my next book and probably some articles.  (“Four Horsemen” goes on, but it will take years.)  I think I’m going to call it “The Heart of the Constitution,” as that’s a nifty description of the Bill of Rights from Huge Black, but we’ll see.


Methods of Execution and the Search for Perfection

113px-The_deathThe recent botched execution by lethal injection in Oklahoma raises a point that I often discuss with my Torts students.  The evolution of capital punishment is largely a futile search for a humane way of killing people.  I say futile because every execution method can go wrong or become stigmatized in a serious way.

Back in the day, executions were supposed to be horrible.  (Consider the Cross, burning at the stake, boiling in oil, drawing and quartering, etc.)  Once people decided that this was torture, then society moved through different options, each of which was considered as a progressive or liberal improvement at the time.

1.  Beheading:  The condemned does not see the ax falling on his head, and it was all over after one blow.  Except when it took several blows because the executioner was a klutz.  That was then a really painful death.

2.  Hanging:  No need to cut anything or shed blood.  Except if the rope was too short (then the head got ripped off).  Or if the rope was too long, people took a long time to die in agony.

3.  Firing Squad:  The condemned can wear a blindfold and it should be over quickly.  Unless the firing squad does a poor job.

4.  The Guillotine:  This was a big improvement over an ax.  It makes far fewer mistakes and is relatively painless.  Once it got associated with the Terror of the French Revolution, though, that was off the table.

5.  The Electric Chair:  When it was introduced, “Old Sparky” was supposed to be a great improvement.  After all, it was a machine and did not involve cutting.  Except when the voltage was too high and burned people, or too low and didn’t kill.

6.  The Gas Chamber:  Hitler’s Germany made this technique impossible to use again.

7.  Lethal Injection:  That was supposed to be painless and foolproof.  Except when the IV is not done correctly or the chemicals are administered in the wrong proportions.


What is the Bill of Rights?

I’m giving a talk today at Wisconsin about the Bill of Rights, and one thing that I will emphasize as I expand and rework my draft paper on the use of that term is that the Bill of Rights is largely a 20th century construction rather than an 18th century fact.  Here’s one example.  Is the Bill of Rights the first eight amendments or the first ten?  No doubt many of you would say 10 because ten were ratified in 1791.

Many cases and commentators, though, define the Bill of Rights as the first 8.  Learned Hand took this view. So did Hugo Black and Felix Frankfurter.  Why is that?  Partly it’s because they did not care for the Tenth Amendment and thus wanted to read it out of the Bill of Rights.  (Black also didn’t like the Ninth Amendment).  Another thought is that the Bill of Rights must really be about specific individual rights, which leaves the 9th and 10th out in the cold.  You can find many authorities that use this formulation, and as far as I know there is no definitive statement from the Supreme Court to the contrary.

Arguably the “official” Bill of Rights is the one in the National Archives, but, alas, that one has 12 amendments, as there were twelve proposed by Congress in 1789.


The Thirteenth Amendment and John Bingham

101px-John_Bingham_-_Brady-HandyLast week the Fifth Circuit followed at least one other circuit court by upholding federal hate crimes legislation as an exercise of Congress’s enforcement authority under Section Two of the Thirteenth Amendment.  One question worth asking is if that authority (and the Court’s 1968 decision in Jones v. Alfred H. Mayer Co) will eventually be narrowed to make them consistent with City of BoerneShelby County, and other recent cases on Congress’s enforcement power under the Reconstruction Amendments.

Related to that issue, I want to point out an inconsistency of sorts.  One reason why the Thirteenth Amendment is hardly ever used to sustain federal legislation is that John Bingham read it narrowly.  As I explain in my book, Bingham was the only significant congressional Republican who opposed the Civil Rights Act of 1866, and he did so on the grounds that the statute was unconstitutional.  Only with the Fourteenth Amendment, Bingham said, could such a statute be sustained.  His colleagues disagreed.  They argued that Congress already possessed the authority to enforce civil rights within the states. The Supreme Court, though, agreed with Bingham’s position when it rejected the Thirteenth Amendment in The Civil Rights Cases (addressing a broader civil rights statute enacted in 1875). In this respect, Bingham’s idiosyncratic view became (and still is) the law.

When it comes to whether the Fourteenth Amendment incorporated the entire Bill of Rights, Bingham once again held what could be described as an idiosyncratic view that the answer was yes.  (It wasn’t as idiosyncratic as his view of the Civil Rights Act of 1866, but since that is how his position gets described by critics let’s just go with that.)  Most people, though, take that “outlier” position as evidence that his view cannot be the law.  How can that be true when the opposite is true for the Thirteenth Amendment?


The English Bill of Rights of 1689

Before putting together a longish post on how the “Bill of Rights” evolved as a term of art in the United States, I wanted to note a related item of interest that I’m come across in my research.  The English Bill of Rights of 1689, which was the canonical text of the Glorious Revolution and an inspiration for our Bill of Rights, was also not called the “Bill of Rights” when it was enacted.  The actual name of the statute was “An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown.”  At some point not long afterwards, the Act became known as a bill of rights or the bill of rights, but I do not know how or why that happened.

UPDATE:  The formal Short Title “The Bill of Rights” was not given to the Act until 1896.


Institutional Formalism and Realism

I want to give a shout-out to an important new paper written by Rick Pildes, who I think is probably the most perceptive scholar out there with respect to the relationship between law and politics.  Here is the paper and the Abstract:

Constitutional and public law often entail judicial review of the actions of public institutions. In engaging in this review, courts can adopt a stance of either “institutional formalism” or “institutional realism” regarding how the institution in question functions. After defining those terms, this article argues that the tension between institutionally formalist and realist approaches is a pervasive one, even if obscured or latent, throughout the constitutional and public law of institutions. We cannot understand these bodies of law fully without recognizing this fact. Many scholars in discrete areas of law can be understood as grappling with this tension in some form. But we have not appreciated how profound this institutional issue is, nor how it transcends specific areas of law to stand as one of public law’s general, defining problems.

This formalist/realist institutional tension structures public-law doctrine and debates regarding judicial oversight of virtually all the institutions of governance. As this article demonstrates, that is so for judicial review of the actions of Congress, the President, federal administrative agencies, state legislatures, and state courts. After developing this framework, the article applies it to the Supreme Court’s Shelby County decision, in which the Court struck down part of the Voting Rights Act, and shows that the case hinges on how formalist or realist the Court ought to be regarding Congress.

The general struggle in how the law should conceive public institutions can be seen as the modern successor to the early 20th century tension between formalist and realist approaches to the substantive content of legal concepts, categories, and doctrines. Now, the tension between institutional formalism and realism re-raises the question of how much pragmatism – this time, at the level of institutions and processes – is compatible with certain conceptions of the rule of law. Focusing more directly on this tension illuminates public law and its controversies but cannot suggest that any final resolution is available. Yet to understand public law fully requires appreciating the powerful role this tension quietly plays.