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Category: Constitutional Law


F.F. — Make of him what you will, but . . .

Felix Frankfurter

Felix Frankfurter

I want to recommend a relatively new article in the Journal of Supreme Court History. It is impressively researched, commendably thoughtful, and refreshingly balanced. Before doing so, however, permit me to say a few prefatory words.

It is hard to be fair when writing of those with whom we disagree, and harder still when we dislike their personal manner. Arrogant, argumentative, and devious – these are not the words that fair-minded scholars like to use unless the fit is fair. All of which takes us back in time to this man: Felix Frankfurter (1882-1965).

What to make of him?

As a Supreme Court Justice he was, in Mel Urofsky’s words, “a divisive figure whose jurisprudential philosophy is all but ignored today.” Others have been even less kind in their assessment of the temperament and jurisprudence of the Justice from Vienna. While Cass Sunstein has recently labored to revive respect for Justice Frankfurter and his judicial opinions, that effort may prove Sisyphean (save, perhaps, in a few discrete areas involving federal jurisdiction).

Still, there was more to Felix Frankfurter than the life he led on the Court between 1939 and 1962. The trajectory of his career (fueled by hard work, ambition, and brilliance) is an immigrant-come-to-America success story at its best. His work – first with Louis Brandeis and then on his own – to advance the cause of fair and humane labor practices exemplifies the Progressive movement in its glory. Then there was the role he played early on in helping to launch the ACLU. With a mix of courage and insight, he later called for a retrial for Nicola Sacco and Bartolomeo Vanzetti by way of an impressive lawyer-like article he published in the Atlantic in 1927; the article was thereafter expanded into a small book. And, of course, there is more, much more, which brings me back to that article I alluded to earlier.

Sujit Raman

Sujit Raman

Sujit Raman (the chief appellate lawyer in Maryland’s U.S. Attorney’s office) has just published an engaging and highly informative article. Its title: “Felix Frankfurter and His Protégés: Re-examining the ‘Happy Hot Dogs.’” It captures Felix in all his complexity and does so with objective nuance. With skilled brevity Raman also sketches the story of the Jewish immigrant’s struggle to assimilate, the Harvard Law student’s meritocratic success, the progressive’s desire to improve government when he went to work for Henry Stimson (first in New York and then in Washington, D.C), and then the Harvard professor’s cultivation of the best and brightest, whom he invited to his Sunday teas.

Above all, Sujit Raman’s real story is about Felix Frankfurter’s “greatest legacy,” namely, the “legions of students he trained and nurtured at the Harvard Law School, . . . who, in their own right, shaped the age in which they lived.” Consistent with that objective, Frankfurter’s “avowed intent as a professor was to instill in his students an interest in public service, and from his earliest days, he began collecting recruits for his crusade.” In time, they would come to be known as Frankfurter’s “Happy Hot Dogs” as Hugh Samuel Johnson tagged them.MTE5NTU2MzE2MjE5NDc1NDY3

Could he be snobbish? Yes. Could he be petty? Yes. Spiteful? Yes. Did he delight in manipulating matters from unseen sidelines? Yes again.

Clearly, F.F. had his psychological warts. Yet, when one steps back and beholds the man and this patch of his life work at a detached distance, he stands rather tall. Why?

Now, to cut to the chase: “Frankfurter was one of the New Deal’s intellectual architects as well as one of its most accomplished draftsmen of policy – yet he had no legislative portfolio or any official position in the Roosevelt Administration.” Moreover, adds Raman, “Frankfurter was the New Deal’s principal recruiting agent. He placed his protégés in all levels of government, and consequently his vision was carried forth, albeit indirectly, by his able lieutenants.” In sum, “the New Deal was in many ways the embodiment and culmination of Frankfurter’s life work.”

James Landis

James Landis

In the span of 28 pages (buttressed by 127 scholarly endnotes), Sujit Raman fills in many of the blanks in the Professor-and-the-New-Deal story. While he is cautious not to exaggerate Frankfurter’s role and influence, Raman’s account makes it difficult to deny the remarkable magnitude of Frankfurter’s unique impact on public law and its operation at a crucial stage in our legal history.

True, the “Happy Hot Dogs” story has been told before and from a variety of perspectives (see, e.g.,  here and here). Even so, Mr. Raman does what others before him have not quite done: he tells the story in a concise yet authoritative way and with enough panache to draw the reader back in history for glimpses into the exciting world of F.F. and his adept protégés – the likes of Thomas G. Corcoran (video here), Benjamin V. CohenJames M. Landis, David Lilienthal, and Charles Wyzanski, among others. They were all part of Frankfurter’s network, all “elite lawyers” hand picked because of their ties to F.F. and their “reformist inclinations.”

Whatever your opinion of Felix Frankfurter, his star may yet brighten anew, though probably not in the universe of Supreme Court history and jurisprudence. His true galaxy was elsewhere – in that realm where the “minds of men” move the gears of government to places only once imagined in classrooms in Cambridge.

Ask your librarian for, or go online or order a copy of, Sujit Raman’s illuminating article in volume 39 (March 2014, #1, pp. 79-106)) of the Journal of Supreme Court History. Better still, join the Supreme Court Historical Society. Either way, it will serve you well.


On Jefferson’s Proposed Solution to the “Dead Hand” Problem (and the Futility Thereof)

Thomas Jefferson once opined to his friend James Madison that “the earth belongs in usufruct to the living” and “the dead have neither powers nor rights over it.”  These observations underlie the so-called “dead hand” problem of constitutional theory.  The problem is this:  Why should we the living generation of the present be governed by the constitutional dictates of dead people from the past? What gives those people the authority to rule us from the grave?

To Jefferson, these questions were unanswerable: The dead, on his view, had no right to rule from the grave, which in turn meant that “no society can make a perpetual constitution, or even a perpetual law.” But that conclusion raised a further question of its own: namely, how should we the people of the present design a constitutional system that defuses the threat of dead-hand rule down the road.  Jefferson’s answer was simple: Require that “every constitution . . . , and every law, expire after 19 years,” at which point the new generation of the living would acquire the prerogative to choose a new constitutional system for itself.  (I should note, by the way, that Thomas Paine had a few years earlier endorsed a similar solution, tethered to a 30-year, rather than 19-year, sunset term.  I apologize to the Paine estate for not featuring Tom P. more heavily in this blog post.)

Madison responded to Jefferson by suggesting that he had prescribed a cure way worse than the disease. Even if “in [t]heory” Jefferson’s solution would suffice to disempower the dead hand of the past, the repeated rebooting of our constitutional system would “in practice” give rise to some significant problems of its own. Specifically:

Would not a Government so often revised become too mutable to retain those prejudices in its favor which antiquity inspires, and which are perhaps a salutary aid to the most rational Government in the most enlightened age? Would not such a periodical revision engender pernicious factions that might not otherwise come into existence? Would not, in fine, a Government depending for its existence beyond a fixed date, on some positive and authentic intervention of the Society itself, be too subject to the casualty and consequences of an actual interregnum?

All good points, for sure.  But there is, I think, a further problem with Jefferson’s 19-year sunset proposal: it wouldn’t actually eliminate the problem of dead-hand control. Here’s why:

Read More


Citizens United and Freedom of the Press

If you want to read a great article, then go look at Michael McConnell’s paper on Citizens United.  He offers a very convincing explanation of why the result is correct on a narrower constitutional ground than what the Court used. Here is the Abstract:

The central flaw in the analysis of Citizens United by both the majority and the dissent was to treat it as a free speech case rather than a free press case. The right of a group to write and disseminate a documentary film criticizing a candidate for public office falls within the core of the freedom of the press. It is not constitutional for the government to punish the dissemination of such a documentary by a media corporation, and it therefore follows that it cannot be constitutional to punish its dissemination by a non-media corporation like Citizens United unless the freedom of the press is confined to the institutional media. Precedent, history, and pragmatics all refute the idea that freedom of the press is so confined.

The result in Citizens United was therefore almost uncontrovertibly correct. No one disputes that corporations, such as the New York Times Company, can editorialize during an election, and other groups performing the press function have the same right, even if they are not part of the traditional news media industry. A holding based on the Press Clause, though, would not have implied any change in constitutional doctrine about campaign contributions, which are not an exercise of the freedom of the press.



The Location of the Bill of Rights

I thought I was done with this theme for the time being, but my research yesterday pointed to something else I thought was worth mentioning.  When you look at state constitutions, there is one important difference between their bills of rights and the Federal version.  Many states put their bill of rights FIRST (or right after a brief Preamble).  This may explain why people were unwilling or unable to see the 1791 amendments as a bill of rights for a long time.  (States also treat their constitutions like statutes–amendments are just inserted into the document and the original language is altered.  The Federal Constitution, of course, is not like that.)

It’s also worth noting that state bills of rights were modeled (I think) on the Virginia Declaration of Rights of 1776.  They tend to be long, contain general statements about liberty and democracy, and only occasionally ape the language of the federal bill.  Maybe I’ll explore that in greater detail.


FAN 26 (First Amendment News) — Akhil Amar on the “First” Amendment

First: First?

Less cryptically, the first and main question that I shall explore . . . is whether [the First] Amendment is genuinely first — first in fact, first in law, and first in the hearts of Americans. In the process of exploring this question, I also hope to shed some light on the meaning of this amendment in particular and the nature of constitutional interpretation in general. Akhil Amar

Professor Akhil Reed Amar

Professor Akhil Reed Amar

Akhil Amar, the Sterling Professor of Law and Political Science at Yale, is well known in the worlds of constitutional law and history. His six books include The Bill of Rights: Creation and Reconstruction (1998) and America’s Unwritten Constitutions: The Precedents & Principles We Live By (2012). Among Professor Amar’s many honors is his 2012 National Archives dialogue with Justice Clarence Thomas. More recently, he has returned to his study of constitutional history by way of a new scholarly essay.

The essay is entitled “The First Amendment’s Firstness,” which appears in the UC Davis Law Review. The work derives from the Central Valley Foundation/James B. McClatchy lecture on the First Amendment, which Amar delivered on October 16, 2013 at the University of California at Davis Law School (see video of lecture here). Below I summarize the Essay by a series of questions and answers based on the author’s observations and conclusions.

Question: “Do the actual words ‘the First Amendment’ or ‘Amendment I’ themselves appear in what we all unselfconsciously refer to as ‘the First Amendment?’”

Answer: No.  The answer has to do with what is known as the “correct copy” of the Constitution.

Question: What, then, was the official (“correct”) name of what we now call the First Amendment?

Answer: The official title was “Article the Third” — no “First” and no “Amendment.” In this regard, what is crucial is the text that was first submitted to and then ratified by the states, which is not the same as the commonplace copy contained in all our books and those pocket-size constitutions some carry with Hugo Black-like pride.

Question: In terms of their importance, how significant is the ordering of the ten amendments in the Bill of Rights?

Answer: Not significant at all. Says Amar: “the ultimate textual ordering of the first set of amendments was a remarkably random thing.” Moreover, he adds: “the initial ordering of the proposed amendments in the First Congress had little to do with their intrinsic importance or relative rank. Rather, the amendments were originally sequenced in the First Congress so as to track the textual order of the original Constitution. Thus an amendment modifying congressional size came first, because that issue appeared first in the original Constitution . . . .”

Question: “who says that the official text of the Constitution must govern for all purposes — even for all legal purposes”?

Answer: Here is how Amar answers his question: “The brute fact that millions of copies of the U.S. Constitution . . . include the words ‘Amendment I’ or something closely approximating these words alongside the amendment’s meat — ‘Congress shall make no law . . .’ — should arguably suffice for us to treat these technically unratified words as if they had indeed been formally voted upon in 1789–91.”

Question: Does the fact that the Reconstruction Amendments were officially captioned “XIII,” “XIV,” and “XV” have any constitutional significance with reference to the Bill of Rights?

Answer: Yes. “The Reconstruction Amendments invite/compel us to read the earlier amendments in a new way,” says Amar.  In other words, at that pinpoint in ratification time “Article the Third” became “Amendment I.” Moreover, adds Amar, “a great deal of what we now think about ‘the Bill of Rights’. . . owes a greater debt to the vision of the Reconstruction generation than to the Founders’ world-view.”

In the process of answering these and other related questions, Professor Amar goes on to examine the First Amendment’s “firstness” by way of structural, historical, doctrinal, and cultural considerations.  Having done so, he raises a more fundamental question:

Might the very strength of the amendment today, its very firstness, be grounds for concern? Precisely because we all love the First Amendment — because it truly is first in our text and first in our hearts — is there a danger that all sorts of less deserving ideas and principles will cleverly try to camouflage themselves as First Amendment ideas when they are really wolves in sheep’s clothing?

Against that backdrop, he questions the First Amendment validity of decisions affirming free speech rights related to alcohol and tobacco advertising, pornography, animal cruelty, and campaign finance. Furthermore, he stresses the importance of “the deeply democratic and egalitarian structure of this free-speech principle, properly construed” — though for Amar freedom of the press “is less intrinsically democratic.”

There is, of course, more to say about this thought-proving essay, which I urge you to read . . . even if some of its claims might raise your ideological eyebrows.

Sam Walker to Launch Civil Liberties Web Site Read More


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


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.





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.




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.


Species of Structural Argument

Many thanks to Danielle et al. for letting me guest-blog this month.  Concurring Opinions is one of my favorite law blogs out there (second only to the “Bob Loblaw Law Blog”), so I’m honored to be a part of it.

I have recently been thinking some about the nature of “structural arguments” in constitutional law.  At a general level, I understand such arguments to assert claims about the Constitution as a whole, rather than any one provision of the document in particular.  But there are several ways of drawing inferences from the Constitution “as a whole,” some of which strike me as meaningfully different from others.  So, I have been trying to sort through various categories of holistically-oriented constitutional arguments that we might in one way or another regard as “structural.”  Here’s what I have so far: Read More