Author: Gerard Magliocca

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The Rise of the Bill of Rights

Before I return to research mode on this subject, I want to make two other points about why the first set of textual amendments became identified as a “bill of rights” around the beginning of the 20th century.

One hypothesis I am testing is whether state bills of rights drafted after 1791 looked like the first set of amendments.  State constitutions sometimes influence the Federal Constitution, and this may be a prime example.  Let’s say Indiana or California or Colorado wrote a self-styled Bill of Rights that looked a lot like the 1791 amendments.  It would be natural, I think, for people in those states to then see those amendments as a “Bill of Rights” in a way that was not true for the Framers, largely because the first set of amendments did NOT look like the state bills of rights in place at that time (say, in Virginia).

A second thought is that when the United States acquired Puerto Rico and the Philippines from Spain in 1898, Congress passed statutes organizing the governments for both colonies that included a truncated “Bill of Rights” for each.  This was the first time that a major federal statute used that phrase, which then led to many cases construing those provisions as increasing the usage of “bill of rights” to refer to the first set of amendments.  Why did Congress call what was given to these territories a bill of rights?  Probably it was a way of placating critics of imperialism (most notably William Jennings Bryan) and reassuring them that our rule in these places would be just.  (It didn’t work out that way in the Philippines, but that’s another story.)  It would be poetic if foreign conquests ending up strengthening the Bill of Rights at home.

Back to Magna Carta and other topics tomorrow

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The Other Bills of Rights

Since most Americans did not call the first set of amendments the Bill of Rights until the 1890s, what did they call bill of rights up until that time? There were state bills of rights, of course, and the English Bill of Rights of 1689.  Other less obvious candidates included:

1.  Magna Carta–There are cases and commentaries that labeled this as “the great bill of rights.”

2.  The Declaration of Independence. Even John Bingham once referred to this as the bill of rights.

3.  The Civil Rights Act of 1866–I’ve found a case referring to this as “this famous bill of rights.”

4.  The Resolution of the Continental Congress in 1765. Chancellor Kent referred to this as a bill of rights in his Commentaries on American Law.

5.  Article One, Sections 9-10.  Each of these were called a bill of rights in Supreme Court cases prior to the 1890s.

More on this tomorrow, including a surprising turning point in the use of the Bill of Rights following the Spanish-American War.

 

 

 

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What is a Bill of Rights?

102px-James_Madison_engrvNow that I’ve finished drafting “The Anti-Partisan Principle,” I’ve returned to my project on the Bill of Rights.  In prior posts I’ve explained that the Supreme Court did not call the first set of constitutional amendments the Bill of Rights until 1893.  I’ve expanded my search to include all federal cases, and have found only two other clear judicial references to the Bill of Rights as we understand it prior to 1893.

The first came from Justice Story (riding circuit) in 1834, in which he said that “certain amendments of the constitution, in the nature of a bill of rights, have been adopted, that fortify and guard this inestimable right of trial by jury.” (United States v. Gibert).  (Justice Story also described the first set of amendments as being “in the nature of a bill of rights” in his constitutional law treatise.)  The other came from Justice Swayne (riding circuit) in 1866, when he stated:  “The first ten amendments to the constitution, which are in the nature of a bill of rights, apply only to the national government.” (United States v. Rhodes).

The phrase “in the nature of a bill of rights” is interesting.  Why say that instead of saying that these amendments are a bill of rights?  As near as I can tell, the answer is that people in the eighteenth and nineteenth centuries believed that a bill of rights needed to articulate some general principles in a way that they thought ours did not.  When Madison introduced his first draft of the amendments in 1789, he told the House of Representatives that the only portion that constituted a bill of rights was the one that said:

“All power is originally vested in, and consequently derived from, the people.  Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.  The people have an indubitable, unalienable, and indefeasible right to reform or change their Government, whenever it be found adverse or inadequate to the purposes of its institution.”

The first actual set of amendments, by contrast, are more specific.  At some point, though, people either thought of them as general (you can look at the First Amendment of the Due Process Clause that way, for instance), or decided that generality was not what made something a true bill of rights.

More on this tomorrow, as we look at what people thought the Bill of Rights was in this era.

 

 

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Magna Carta–Part I

Next year is the 800th anniversary of Magna Carta, and I thought I’d start a series of posts on that text.  Much of Magna Carta dealt with feudal duties that are obsolete, and the document applied only to the Crown and to the aristocracy (you were largely out of luck as a serf.)  Some of its provisions are quaint, such as “[T]here shall be one measure of wine throughout Our kingdom, and one of ale, and one measure of corn, to wit, the London quarter, and one breadth of dyed cloth, russets, and haberjets, to wit, two ells within the selvages.”

Nevertheless, there are some parts that are surprising, especially with respect to aristocratic women.  For example, “[A] widow, after the death of her husband, shall immediately and without difficulty have her marriage portion and inheritance.”  And “[n]o widow shall be compelled to marry so long as she has a mind to live without a husband.”  You can also see the germ of federalism in the guarantee the “The City of London shall have all her ancient liberties and free customs, both by land and water.  Moreover, We will grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs.”

More next week on property rights, freedom or religion, due process, and other Magna Carta wonders.

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Titles of Nobility Awarded by States

There is a lot of tough news out there these days, so I thought I would try a light-hearted post.  I am an Admiral in the Nebraska Navy.  Folks from Nebraska know what this means, but for the rest of you “admiral” is an honorific awarded by the Governor to folks who make a significant contribution to the state.  (Mine was based on the fact that I wrote an article in the Nebraska Law Review.)  You get a fancy certificate and my Admiralty students find it amusing.

Here’s my question.  Is my title unconstitutional?  The Constitution prohibits states from awarding titles of nobility.  Why does this not apply to Nebraska or to Kentucky, which awards honorary colonel positions?  The answer must be that “Admiral” or “Colonel” is not a title, but why is that?

One thought is that titles in the constitutional sense apply only to the ones awarded in Britain at the Founding.  Thus, Nebraska could not make dukes or barons, but it can make admirals.  Another thought is that a title refers only to something that confers legal benefits.  While those sorts of titles would be invalid, this answer is not sufficient.  If Nebraska awarded knighthoods that were just ceremonial, I think we would still conclude that was unconstitutional.

Accordingly, interpreting “titles of nobility” in the Constitution is partly an originalist task (What was a title in 1787?) and partly a functional one (Is a state doing something that is comparable in spirit to those in a harmful way?).

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Reynolds v. Texas & Pacific Railway Company

In reading Ken Abraham’s excellent article on “Self-Proving Causation,” I was introduced to a delightful Louisiana case captioned above.  Plaintiff and his family were at a station to board a train.  The train was delayed until 2AM, and to get from the station to the platform the passengers had to go down a set of stairs without a railing or lights. When the train arrived, passengers were told to “hurry up” because it was running behind schedule.  Plaintiff’s wife, who was described as “a corpulent woman, weighing two hundred and fifty pounds,” fell and broke her leg.

The railroad argued that ‘but for” cause was not established, since plaintiff’s wife could have fallen in the same way in broad daylight.  The Court rejected this argument:

[W]here the negligence of the defendant greatly multiplies the chances of accident to the plaintiff, and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury.

This is a sound explanation of a kind of “res ipsa loquitur” for causation that was subsequently adopted by other courts.  I was also interested to learn that corpulent was used as a noun, as the opinion later says that plaintiff’s wife was “a corpulent, though not infirm.”  Anyway, the cite is 37 La. Ann. 694 (1885).

 

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Recent Articles of Note

Now that I’ve finished drafting my latest paper, I’m going through the stack of articles that I’ve wanted to read for some time.  I want to make two summer reading suggestions.

The first is Justin Driver’s article on “Supremacies and the Southern Manifesto.”  This is is the first comprehensive look at the Manifesto (made by Southern members of Congress in response to Brown) and contains lots of eye-opening observations about both the segregationist perspective and the response.  It’s well worth your time.

The other is Erin Delaney’s paper on “Judiciary Rising:  Constitutional Change in the United Kingdom.”  The British Constitution is a special interest of mine, and her article does a great job analyzing the changes that have occurred since Tony Blair become Prime Minister in 1997, including a new Supreme Court and regional parliaments.

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Wooden Statutory Interpretation

Critics of the D.C. Circuit’s panel decision in Halbig v. Burwell are condemning the decision for its wooden interpretation of the Affordable Care Act.  This got me to wondering how and when that phrase entered the lexicon.

The first reference I can find in the United States comes from the Indiana Supreme Court in 1906.  State v. Lowry stated that courts should “avoid a wooden interpretation of the words and become able to apprehend the spirit of the statute.”  Perhaps there was some earlier British usage (the phrase certainly sounds British), but I don’t know.

This raises a related point that has always puzzled me.  Lawyers of a certain age like to say when giving credit to someone that they took “the laboring oar” on a case or a project.  I had never heard anyway say this until I went into practice, and I haven’t heard it since I left practice.  Where does that one come from?

 

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Ending Supreme Court Life Tenure

There are many critics of the Constitution’s guarantee of life tenure for federal judges and especially for the Justices.  They point out that most nations with an independent judiciary give their judges long but defined terms.  So do most of our states.  The current system, by contrast, allows the Justices to time their retirements in a political way, subject only to the unwritten rule that they not retire in a presidential election year.  Moreover, life tenure gives both parties a strong incentive to nominate young judges who will be on the Court forever.

How can this be changed?  Short of a constitutional amendment (which will not happen), the only realistic answer is that a norm would have to emerge among the Justices that they should retire after a certain term.  (There is a complex proposal for a statute that would impose term limits on the Justices while preserving their life tenure as judges, but that isn’t going anywhere either.)  After all, George Washington could have won a third term in 1796, but he chose not to and thereby established a powerful custom for a two-term limit.

Why would the Justices adopt such a practice?  I can think of one reason.  The next time different parties control the Senate and the White House, getting a Justice confirmed is going to be really challenging.  Imagine in that situation that a nominee sits before the Senate Judiciary Committee and says “I pledge to the American People that I will retire in ten years.”  That might allow the nominee to be confirmed, and it would be most difficult for that Justice to repudiate that pledge ten years later.   Once that precedent is established, the next nominee would find it hard not to make a similar pledge.