Author: Gerard Magliocca


Frank McCloskey and Constitutional Norms

101px-Frank_McCloskeyMy relative lack of blogging recently is the result of concentrated drafting on my article, but one new issue has come up that I’d like to discuss.  Each House of Congress has the power under Article I to “be the Judge of the Elections, Returns, and Qualifications of its own Members.” For much of our history, Congress performed this function when there was a disputed election.  (John Bingham served on the relevant Committee in the House and worked on several cases, as I discuss in my book.)  Over the past thirty years, though, Congress has abandoned this power and deferred to state courts interpreting state law.  I’ve talked about this in a prior post, but there remains the question of why this change occurred.

I think the answer is that an anti-precedent was set by the contentious dispute over the result in Indiana’s 8th Congressional District in 1984.  Congressman Frank McCloskey, a Democrat, was declared the loser (by 37 votes) in his race by state election officials.  The House of Representatives (controlled by Democrats) declared McCloskey the winner (by 7 votes) and seated him in a party-line vote.  The debate was particularly nasty, and House Republicans marched out of the chamber in protest after the vote was held.

The result of this episode is that Congress’s power to judge elections was relinquished.  One can understand this as a custom that supports federalism (states get to decide who won disputed elections), the rule of law (courts should decide these matters), and an anti-partisan principle (partisan majorities cannot be trusted to resolve these issues).  It’s a good example of how constitutional conventions (in the British sense) develop.


SCOTUSBlog and Press Credentials

There is an ongoing controversy over whether SCOTUSBlog can get a press credential at the Supreme Court.  (For some background, here is Adam Liptak’s column.)  The Court defers on these matters to the Senate, and the Senate defers to a group of journalists on the “Standing Committee of Correspondents.”  The Committee has denied a new petition from SCOTUSBlog for a credential, and is now considering an appeal.

I want to say that I (and many other people) rely on SCOTUSBlog’s professional coverage of the Court’s work.  When the health care cases came down in 2012, SCOTUSBlog got it right while the so-called real journalists (I’m talking to you CNN) got the news wrong.  Moreover, I think that in a world of blogs, vesting credentialing in an obscure group of reporters (who are, of course, not from blogs) is highly problematic.

I thought that CoOp readers and others might want to make their views known to the Committee on this question, and thus I thought I’d list their names and affiliations.  After all, journalists love transparency.

Kate Hunter–Bloomberg News (Kate_HunterDC) on Twitter

Emily Ethridge–CQ Roll Call (

Siobhan Hughes–The Wall Street Journal (siobhanhughes1) on Twitter

Colby Itkowitz–Washington Post (ColbyItkowitz) on Twitter

Peter Urban–Stephens Media Group (




Originalism and Same-Sex Marriage

The ongoing string of decisions invalidating state prohibitions on same-sex marriage leads to me to ask the following question:  What should an originalist say about these cases?  I presume the answer must be that they are incorrect.  Same-sex marriage was not permitted in any state until 2004, and there is nothing about sexual orientation in the text of the Constitution or in the debates surrounding the amendments.  Moreover, when the Equal Rights Amendment was defeated in the 1970s, part of the reason offered by its foes was that the ERA would permit same-sex marriage.  Granted, the original understanding of a defeated amendment is not the same as the original understanding of a ratified one, but one would think that this would still matter to some extent to an originalist.

Is there an originalist defense of these cases?  If so, what is it?


The Origination Clause Challenge to Obamacare

As some of you may know, there is a case pending in the DC Circuit arguing that the Affordable Care Act is an unconstitutional revenue bill that originated in the Senate.  The District Court rejected this claim, but Randy Barnett argues forcefully in this post over on Volokh that the Origination Clause argument should be taken seriously.  The Act started as a House Bill, but was then replaced in its entirety by the Senate in the drafting process. If this is permissible, then origination is nothing more than a formality.  This cannot be consistent with the original understanding of the provision, the argument goes, and the Supreme Court has said that the Origination Clause is justiciable.

I want to raise two questions about this challenge.  First, how much should we care about the fact that the Supreme Court has never invalidated an Act of Congress for violating the Origination Clause?  Sometimes I think legal academics (and I’m guilty of this as well) act too much like a job placement service for unemployed constitutional clauses.  (“You have a superb resume Mr. Contracts Clause.  Out of of work since 1934?  No problem–I’ll make some calls.”)  The complete absence of the Origination Clause from modern constitutional thought must mean something other than “The Constitution has been betrayed.”

Second, at what point do reliance interests make invalidating the entire Affordable Care Act inappropriate?  The Supreme Court would not decide this case (if they take it) until next year at the earliest.  Would a decision at that point striking down the Act cause too much chaos to be the right thing to do?  It’s easy to say no because the law is the law, but stare decisis stands for a different understanding of the importance of reliance interests.

Finally, my understanding of the Chief Justice’s holding in NFIB v. Sebelius is that five Republican Justices should not invalidate the signature law of the Democratic Party over the objections of four Democratic Justices.  That principles covers the Taxing Clause, the Origination Clause, or the Duty of Tonnage Clause.



Stuart v. Laird and the Judiciary Act of 1801

I want to describe a paradox that I’m writing about in my draft article.  Let’s consider two statutes from the early years of the Republic.  The first is the Judiciary Act of 1801, which created the infamous “Midnight Judges” of John Adams.  The second is the Repeal of that Act in 1802, which was upheld by the Supreme Court in Stuart v. Laird.

Which of these acts is an anti-precedent in modern law?  The answer is the first statute.  Almost everyone thinks that the Midnight Judges were really inappropriate (though for different reasons).  Nonetheless, the Judiciary Act of 1801 and the confirmation process followed for the judges were clearly constitutional.  As the phase goes, this was “legal but unconstitutional.”

Now consider the Repeal of the Act.  This is a valid precedent because of Stuart v. Laird, but the repeal was almost certainly illegal.  Eliminating an Article III judge with a statute by abolishing his or her position completely circumvents the impeachment process.  You might be able to square this circle by saying that Congress can give a sitting judge nothing to do so long as he or she still receives a salary, but the Midnight Judges got nothing after their offices were abolished (though they petitioned Congress about this).  The repeal was what might be called a “constitutional but illegal” act at the time.  (Probably now people would not stand for this sort of office erasure, but that’s hard to say.)

One way to make sense of these examples is through politics.  What the Federalists stood for in 1800 was decisively repudiated in that election and in many thereafter.  Thus, the 1801 Act is in the ash heap of history and the Repeal had to be upheld because the people were really for it.  Stuart v. Laird, then, is a kind of “switch-in-time” case.  But you could also say that the Court’s decision to uphold the Repeal of the Judiciary Act of 1801 was a recognition that preserving fair play between the two parties was more important than the actual text of Article III.  (Or at least that reading makes sense two centuries later when we think the two-party system is a cornerstone of our democracy.)

Just food for thought.


Chief Justice Burger and the Second Amendment

93px-Warren_Burger_OfficialCritics of the current interpretation of the Second Amendment are fond of quoting Chief Justice Warren Burger’s charge that the Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”  The Chief Justice said this in an interview after he retired, but the quote has taken on a life of its own.

Having heard this quote repeated many times over the years, I feel compelled to say two things about it.  The first is that this is the only time anybody quotes Warren Burger in a positive way.  You don’t traction in constitutional debate by invoking Chief Justice Burger.     The second (and related) point is that the late Chief Justice was (and I thought hard about the right word to use here) a chowderhead.  The other Justices had a low opinion of him, his opinions are uniformly mediocre, and he was not a distinguished thinker.  The Court’s reading of the Second Amendment may be wrong, but not because Burger thought so.


Errata in Supreme Court Opinions

Today I read with interest Adam Liptak’s article in The New York Times about the editing of Supreme Court opinions after they are released.  I was surprised to learn that some of these edits are substantive and that there is no simple way of assessing what changes are made.  Moreover, it appears that the Justices can edit for years after the case comes down (until the official reporter comes out, I guess.)

In the modern age, these practices are ridiculous.  The Court could easily provide a red line or compare version of final opinions on its website.  Likewise, I fail to see why it takes years for the official reporter to be published.  (Can’t the Court issue a PDF version a few months after a given Term or other logical break point?) Finally, the Justices should not be able to revise their opinions after lower courts start quoting from them.


Whither The Great Appellate Judge?

90px-LearnedHandOn Wednesday Chief Justice Roberts awarded the Henry J. Friendly Medal (given by the ALI) to Judges Pierre Leval and Michael Boudin, who were both Friendly clerks.  The Chief Justice and Judge Leval extolled Friendly’s contributions as a judge, a lawyer, and a scholar, which led me to wonder why there is not someone like him today.  The closest example is Richard Posner, but Posner’s influence as an academic far outstrips his importance as a judge.  (I’d be hard pressed to name a Posner opinion that is considered authoritative in a given field.)

Why are there no successors to Learned Hand, Benjamin Cardozo, or Henry Friendly?  Here are a couple of thoughts:

1.  There are a lot more judges now (both state and federal).  Consequently, it is much harder for one judge to wield that kind of influence.

2.  There is a lot less common law today.  Judges have a diminished role because of the growth of the administrative state and because of the expansion of federal law into realms that used to be the province of state courts.

3.  The profession is more diverse.  Hand, Cardozo, and Friendly all sat in New York, which was widely acknowledged as the center of the legal universe.  Not now.  There is also less deference to the “Harvard” view of the world that Friendly and Hand embodied.




Campaign Finance Reform and Corporate Law

I just returned from the ALI’s Annual Meeting, and I wanted to post about an interesting hypothetical that was raised in the course of the discussions.

Suppose Delaware passed a statute providing that no company incorporated there could give money to political campaigns.  (A more modest version of this statute would be that any new corporate charters would contain such a limit.)  Would this be unconstitutional under Citizens United?

1.  Yes, because a state can ban corporations entirely or impose all sorts of other regulatory limits, but not a rule that restricts corporate speech.

2.  No, because a firm can choose to incorporate in another state that would not impose such a limit.  In other words, federalism gives states broad authority over the corporate form, and the burden on free speech is incidental if you have to incorporate in, say, Ohio, instead of Delaware.  So long as some states (or even one state) permitted unrestricted campaign contributions by its corporations, then there is no First Amendment problem.

Which is the better answer?



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.