Author: Gerard Magliocca


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)


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.


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 . . . “


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?



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?


Blogging Hiatus

I am on paternity leave this semester, and taking care of an infant most of the day does not lend itself to deep thinking about the law (or about much else).  You can therefore expect to see me here less often in the next few months, though I’m sure I’ll post a few times once the Justices get back into action.


Introducing Guest Blogger Nicholas Georgakopoulos

ngeorgakI am pleased to welcome Nicholas Georgakopoulos to CoOp this month.  Professor Georgakopoulos is an expert on bankruptcy, securities regulation, and corporations who writes from a law and economics perspective.  He received his law degree at the Athens University School of Law, his LLM from Harvard, and then taught at the University of Connecticut before moving to the Robert H. McKinney School of Law, where he now holds the Harold R. Woodard Professorship.  Nicholas also owns a winery in Greece (probably a CoOp first, though I can’t say for sure) and is a wonderful colleague.  Hope you enjoy his stint here


Further Thoughts on Halbig and Originalism

Since my post on Halbig and originalism drew several great comments (including a response by Larry Solum here), I thought would add some clarifying thoughts.

My point is that recovering the original public meaning of a legal text is often much harder than people care to admit. Historians are more likely than lawyers to say that the meaning of a past event is indeterminate.  Now does this mean that we can never know the original public meaning of something?  No.  Does it mean that we should not try to know?  No.  Originalists, in my view, just tend to be overconfident in what they think they know or can figure out.  If we are having a hard time with something from four years ago (assuming you believe that is the case), then where are we for texts from two hundred plus years ago?

Now the best rejoinder to the specific claim in my post is that a complex statute like the Affordable Care Act is not comparable to constitutional language.  The latter gets more widely discussed and is easier to understand.  That is true to some extent, but I’m not sure it’s a total winner.  People are always surprised at how little Section One of the Fourteenth Amendment was discussed at the time, for example, and you can find examples of statutes that were discussed in far greater detail (the Civil Rights Act of 1964, for example).



Residence Requirement of the Federal Circuit

One of the most curious provisions in federal law is 28 U.S.C. Sec. 44(c), which states the following:

“While in active service, each circuit judge of the Federal judicial circuit . . . and the chief judge of the Federal judicial circuit, whenever appointed, shall reside within fifty miles of the District of Columbia.”

There is a residency requirement for active circuit judges in the other circuits (you have to live in the circuit), but drawing a 50 mile circle around DC for all federal circuit judges seems really silly.  First, it sharply limits who can be on that court.  Second, what’s so special about where you live when you hear (mostly) patent appeals.  And finally, why 50 miles?  Folks can easily take a train from New York to DC or live, say 60 miles away and commute.  Congress ought to consider repealing this residency rule.

UPDATE:  I wonder how this requirement could be enforced against an Article III judge.  Impeachment for Federal Circuit judges who move to New York?  Does the Chief Judge bar the person from hearing new cases until he or she moves back into the 50-mile zone?