Author: Gerard Magliocca

1

Justice Jackson’s Error

97px-RoberthjacksonA subject that came up in my Bill of Rights seminar this semester is the fallacy that the rights included in the First Amendment were the most important ones because    . . . well, they came first.  Of course, this is wrong.  The First Amendment proposed by Congress to the states concerned the structure of the House of Representatives.  Our First Amendment was third in that list.

I think that the “First Amendment was first” error was first made by Justice Robert Jackson, who was a brilliant writer but not the most careful one.  Dissenting in Everson v. Board of Education, Justice Jackson said that religious “freedom was first in the Bill of Rights because it was first in the forefathers’ minds; it was set forth in absolute terms, and its strength is its rigidity.”  I’m looking for other examples though.

 

2

The Indiana Religious Freedom Restoration Act

My adopted home state is getting a lot of criticism for enacting a state version of RFRA.  I’m not sure why.

The concern is that the statute will authorize many businesses to refuse service to gays and lesbians.  As far as I know, though, no case construing the federal version of RFRA or the other state versions has held that this fact-pattern is covered.  Now is such an interpretation possible?  Yes.  Do some of the legislators who supported this statute in Indiana want that interpretation to be the law?  Probably.  My only point, though, is that there’s nothing special about Indiana’s statute as compared to the one enacted by Congress in 1993 or by many other states, and none of them (so far) authorize discrimination based on sexual orientation.

 

3

Griswold and the Bill of Rights

93px-WilliamodouglasThis is the 50th anniversary of Griswold v. Connecticut, and I’ve been thinking about the case as part of my research on the Bill of Rights.  As I’ve mentioned in prior posts, Griswold is the only Supreme Court opinion that reads the first set of amendments holistically (“emanations” and “penumbras”), and Justice Douglas’s opinion makes some other statements about the Bill of Rights that have proved quite influential.

Let’s start with the holistic point.  When the Court was issuing its liberty of contract cases from the 1890s until the 1930s, here’s what was not said:  “The liberty of contract can be derived from various guarantees in the Bill of Rights.  The Takings Clause protects property from expropriation without just compensation.  The Second Amendment protects our right to contract to buy guns.  The Third Amendment protects the home from a coerced rental of a room to a soldier.  The Fourth Amendment protects papers (including contracts) from unreasonable searches and seizures.  And then there is the Ninth Amendment.”

Why did the Court not approach the liberty of contract in this way?  One reason is that there was no idea then that the first set of amendments should be read together or were special.  Second, none of these rights (except for Takings) applied to the states, thus to use them to support an unwritten right that would bind the states would have been odd.  The holistic reading in Griswold, in other words, was the product of the growth in the importance of the Bill of Rights by 1965 and the related success of incorporation.

Next, Griswold settled the longstanding debate about whether the Ninth Amendment was in the Bill of Rights.  You can find several Supreme Court opinions before this that define the Bill of Rights as the first eight amendments.  But Griswold says quite clearly that the Ninth is part of the holistic reading, and since then the Court has not revived the “first eight amendments” definition.

Finally, Griswold introduced the idea that rights or structural protections that predate the Bill of Rights must be really important because they are “older than the Bill of Rights.”  This trope has appeared in many opinions since 1965, though I’m still researching that point.

More on the Bill of Rights tomorrow . . .

0

Stanton Biography

When I was working on my Bingham book, I remarked that we could use a new biography of Edwin M. Stanton, Lincoln’s principal Secretary of War and a leading figure during Reconstruction.  I learned the other days that a new biography of Stanton will come out next month.  I can’t vouch for this one yet (I’ve just pre-ordered), but Civil War buffs may find this irresistible.

3

The 800th Anniversary of Magna Carta

Next month marks the 800th anniversary of Magna Carta.  To celebrate that occasion, we will have three guest posts on April 15th by Renee Lerner (George Washington University Law School), Joyce Malcolm (George Mason University Law School), and Thomas McSweeney (William and Mary Law School).  We look forward to their posts.

9

The Future of the Death Penalty

On “Yes Minister,” the civil servants who want to block government initiatives like to say that an idea is fine in principle but not in practice.  We may be approaching that point with the death penalty.  The Court will soon take up another case soon examining whether the new three-drug protocol that states are using to execute people is cruel and unusual punishment.

There’s a broader problem here though.  The companies that make these drugs often do not want them used in this way.  That may be for moral reasons or just for brand reasons–nobody wants their sedative known for killing people.  But if the Justices say that only a certain set of drugs can be constitutionally used for executions, that gives private firms the power to decide if the death penalty can continue.  (A state could buy the drugs through a third-party, but that would probably be shut down over time. )

Of course, states could move towards other methods of execution that do not involve drugs (say, a firing squad), but it is not clear that these could pass constitutional muster.  Thus, we could end up with death penalty abolition in practice without ever seeing an opinion that attacks the sentence head-on.

6

Petitions for Rehearing in the Supreme Court

It occurred to me today that someone could write a terrific article on petitions for rehearing in the Supreme Court.  Although rarely granted, these motions do represent a useful contemporary source of criticism of the Court’s judgment in a case.  I’m not sure how often these motions are filed (and they are not easily accessible), but wouldn’t you be curious to see one from Brown v. Board of Education (if there is one), Roe v. Wade, or other Supreme Court classics?

4

Enforcing Judgments Only Against Named Parties

Will Baude has a thought-provoking op-ed in today’s New York Times.  In this case, thought-provoking is my euphemism for “I don’t agree.”  He argues that:  “If the administration loses in King, it can announce that it is complying with the Supreme Court’s judgment— but only with respect to the four plaintiffs who brought the suit.”

While Will is correct on the law, I think that this would be a terrible idea.  There are many problems with our Constitution, but “not enough executive discretion” does not strike me as one of them.  I would note also that such an act would be unprecedented.  Yes, Lincoln suggested the same thing with respect to Dred Scott.  But there’s a big gap between that and a Supreme Court decision construing the Affordable Care Act.

Lastly, I’m not sure that Will would have suggested the same course if the Court had ruled against the Administration in NFIB.  Maybe a statutory case is different.  Maybe a tax credit cases is different.  But I’m not convinced.

2

James Madison and the Bill of Rights

97px-James_MadisonAs part of my research for my next book, I’ve been trying to see if Madison ever called what was ratified in 1791 the Bill of Rights or a bill of rights.  Thus far, I have come up empty.

One possible example was in an article that Madison wrote for The National Gazette in December 1791.  In this piece, entitled ‘Public Opinion,” he stated: “[A]s government is influenced by opinion, it must be so, by whatever influences opinion.  This decides the question concerning a Constitutional Declaration of Rights, which requires an influence on government, by becoming a part of the public opinion.”  This article came out four days after the first set of amendments was ratified.  Thus, in context maybe this passage was referring to what was just ratified as a “Declaration of Rights.”  If so, though, this was a pretty oblique way of making the point.

I’ve also gone through Madison’s Report on the Virginia Resolution, which contained a detailed analysis of the Alien and Sedition Acts.  In that Report, Madison refers only to “the amendments” and quotes from the First and Tenth Amendments.  He never calls the amendments a bill of rights or the bill of rights.

There are no references to the Bill of Rights in Madison’s presidential papers. We’ll see what I find when I go through his papers in retirement.