Happy Constitution Day!

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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5 Responses

  1. Joe says:

    “With almost equal definiteness they detailed the Bill of Rights.”

    Oh come on.

  2. Jim Maloney says:

    Sure, look at the Ninth Amendment. What could be more “definite[ly] detailed” than that?

    …(he asked sarcastically)

  3. Shag from Brookline says:

    The several references in this post to lawyers back then might cause some youthful readers to wonder what law schools they attended.

  4. Anon. says:


    I think this address, followed by “Discuss,” would make a wonderful 3 hour con law final exam. What one could do with it! (Nevermind, at this point, the disappointment that would invariably follow, over vacation, at what was in fact done with it.)

  5. This has given me food for thought regarding the inviolability of the Constitution, or rather the distinctions between a static, always literal document, and principles. It appears then the real disagreements are if the principles so wisely laid out are followed or not. Times change, and so the APPLICATION of principles must, but values such as human rights and the protection of the individual from the group are timeless. That last one, in fact, is why we are a republic and not a democracy, and thankfully so.

    Which is why I find this statement most disturbing … “The present government of the United States has never taken away and never will take away any liberty from any minority, unless it be a minority which so abuses its liberty as to do positive and definite harm to its neighbors constituting the majority.”

    Consider the Jews as a perceived threat to early 20th Century European banking, government, and all of society. It doesn’t matter how ridiculous it it — it happened because a “majority” will always decide what constitutes a “threat.” At the very heart of prejudice and bigotry is the application of judgment (and even legal restriction) to a “group” instead of an individual according to their own actions. It is why the KKK is not illegal, only the unlawful actions that may be done by its members.

    But could abusing what you say should be able to be done happen in our somehow more enlightened or civilized time? I already hear calls among the masses to restrict, disenfranchise or even deport people according to their ideology, be it Socialist or Islamic, as being a “threat” to what some have decided is “America”. Conversely I see extremist Liberals targeting The Tea Party or even just plain gun owners as classes of people we should be keeping an eye on as a potential “threat”. Liberals and Conservatives are trying to classify the believing of the other’s politics as mental illness, not pejoratively or metaphorically, but by so-called academic research studies of people with letters after their name.

    I can only guess that you did not realize these implications when you wrote, and was really not at all your point. But it quietly underlays the whole discussion. It is the mistake of many a fan of “democracy”, a system our Founding Fathers rejected for that potential vice becoming a practice in any scale. De Tocqueville made such criticisms, as he should have, but the republic of laws has curbed our inclinations to give such powers to the government as a tool of the people. For the most part, anyway, and we seem to be willing to overturn this most basic principle as if a majority vote can dictate political and economic justice.

    This whole issue is another way in which the Constitution is not a typical legal document, namely that the Bill of Rights in particular is not made up of laws limiting the people and protecting them from each other, but limiting the government — susceptible by this or that majority — to protect the individual from any ‘collective’ rights or actions.

    So IMO, rejecting these basic premises is hardly a matter of “progress” by which one can claim the original document is in any way anachronistic.