Author: Gerard Magliocca


Delegating the Dark Side of the Force

With Cass Sunstein working on a book about Star Wars and the new movie soon to drop, I thought I’d take the bait and write about the constitution of the First Galactic Empire.

If we use constitution in the British sense to describe the way in which a government works, then the most interesting feature of the Empire is its decentralized structure and breathtaking delegations of power. This is established early on in Episode Four, following the dissolution of the  Senate and (presumably) the end of Jar Jar Binks’s career.

In response to the dissolution, one of the Death Star officers asks, “How will the Emperor maintain control without the bureaucracy?” Grand Moff Tarkin replies, “The regional governors now have direct control over their territories.”  (I would think that governors would also have a bureaucracy, but anyway.). The power of these imperial governors was nothing, though, compared to the authority delegated to the Grand Moff himself, who could destroy entire planets without the need for consultation.  No wonder the commander of the Second Death Star is shocked in Episode Six when he learns that the Emperor conducting an inspection (“The Emperor is coming here?”)  After all, he never does anything in person.

Yet there were costs to an administrative design that placed so much trust in subordinates.  First, Darth Vader was free to hand the plans to the Death Star to the rebels with disastrous consequences.  Second, the commander chosen to lead an entire legion of the Empire’s best troops was incompetent and defeated by a bunch of teddy bears.  Third, the Empire only narrowly avoided a succession crisis, as it was not clear whether Vader or the Grand Moff was second-in-command (arguably Tarkin ordered Vader to release a choke-hold on his colleague and Vader complied (“As you wish.”).

Of course, centralized evil empires also have flaws.  See Sauron v. Frodo, 56 M.E. 875 (3rd Age, Mordor).



The McReynolds/Brandeis Picture

I want to draw your attention to a new article in The Journal of Supreme Court History (no link available right now) that debunks the famous story that Justice McReynolds refused to sit next to Justice Brandeis for a Court portrait in 1924 and thus there was no official photo taken in that year.

While the story sounds true because Justice McReynolds was a weird person and an anti-Semite, there is nothing to this particular claim.

  1. The Supreme Court did not sit every year for an annual photo in those days.
  2. Justices McReynolds and Brandeis are pictured together at other functions in the 1920s.
  3. The claim that McReynolds refused to sit next to Brandeis came from a book written in the 1960s. The scholar in question relied on a letter written by McReynolds to Chief Justice Taft, but the letter in question says nothing about Brandeis.

A New Book on The First Congress

In prior posts, I’ve commented that we could use a good book on the First Congress, which played a crucial role in shaping the Constitution and our basic institutions. Now I’ve learned that a book is coming out in February on this topic by Fergus Bordewich, which I’ve pre-ordered and wanted to flag for you.


The Father of the Constitution?

203px-JamesMadisonA conclusion that is hard to avoid after reading Mary Bilder’s book on James Madison’s Notes on the Constitutional Constitution is that he does not really deserve the nickname “Father of the Constitution.” Much of what he wanted in the text was not adopted, and much of what was put into the document was the result of a collective effort that Madison (to some extent) obscured in the Notes.

Why, then, does Madison have this nickname?  My hunch, though I need to look into this further, is that when he ran for President in 1808 this slogan was coined for his campaign.  Something similar happened with Jefferson, as people enlarged his role in producing the Declaration of Independence when he ran for President to make it seem as if he wrote the whole thing himself.


Redefining the Bill of Rights

I am now writing the next book in earnest (midway though Chapter One and counting).  Hurray!

One puzzle about the Bill of Rights I’ve been thinking about lately is this:  If people think that the phrase refers to the most important parts of the Federal Constitution that protect individuals, then why wouldn’t people have argued that things other than what was in the first set of amendments were included?  We could argue about what should be included, but possible candidates include the Thirteenth Amendment, parts of the Fourteenth Amendment, and so on.

It turns out, upon close examination, that these sorts of arguments were made from time to time, though sometimes indirectly.  Take Justice Hugo Black, for example, who made this argument in his 1963 Madison Lecture on the Bill of Rights:

I prefer to think of our Bill of Rights as including all provisions of the original Constitution and Amendments that protect individual liberty by barring government from acting in a particular area or from acting except under certain prescribed procedures. I have in mind such clauses in the body of the Constitution itself as those which safeguard the right of habeas corpus, forbid bills of attainder and ex post facto laws, guarantee trial by jury, and strictly define treason and limit the way it can be tried and punished.  I would certainly add to this list the last constitutional prohibition in Article Six that ‘no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.’

State and imperial (Puerto Rico, the Philippines) bills of rights often included the Thirteenth Amendment, and Learned Hand once said that the Due Process Clause of the Fourteenth Amendment was part of the Bill of Rights.  Anyway, more on this I as I roll along, as I’m keen to see (especially at the state level) how the meaning of a bill of rights changed over time.



The 12th Amendment

While we’re on the subject of the Presidency and Vice Presidency, here’s another thought that recently occurred to me.  We commonly say that presidential electors are free to vote their conscience.  It is only a custom, though a well-established one, that they instead vote as state law dictates (with the occasional quirky exception).

But what about this thought.  The Twelfth Amendment substantially changed the Electoral College.  By 1804 (when the amendment was ratified) it was already clearly understood that electors would not vote their conscience and would vote as state law dictated.  Could you say, therefore, that the Twelfth Amendment actually removed the discretion of electors and that they are acting unconstitutionally if they vote in a non-ministerial way?


Vice Presidential Disability

There are many criticisms that can be lodged against the Twenty-Fifth Amendment, and one of them is that there is no process for removing a disabled vice-president short of impeachment.  If you think about it, this presents a serious problem.

Suppose the VP suffers a stroke.  He or she cannot be fired by the President, unlike other significant executive officials. We can do without a functioning Vice President, but what if the President dies or resigns?  Presumably the disabled VP would become President and then would be sidelined under the 25th Amendment.  Then the Speaker of the House would become President (possibly from the other party).  That Acting President could nominate his or her own Vice President (otherwise the next person in the succession would be the President Pro Tempore of the Senate), which in turn could mean that the disabled President (if he or she recovered) could wind up with a new VP not of his or her own choosing.

You could solve this by impeaching and removing a disabled VP without naming a replacement.  Then if that VP recovered, the President could name the old VP as the new one.  But would being ill constitute a “high crime and misdemeanor?”  Some members of Congress might be reluctant to set a precedent like that.

Sooner or later, the idiocy of the Presidential Succession Statute, along with the flaws are the Twenty-Fifth Amendment, are going to cause a constitutional crisis.


Social Capital and Compromise

A column in the Washington Post by Dana Milbank and some comments I heard at a recent conference lead me to wonder if we should think differently about concerns about undue partisanship.

The argument was that one reason why Congress is dysfunctional is that few members (let alone their families) now live in Washington.  Members basically go home on Thursdays to be in their districts and states, and their families typically remain at home.  (Paul Ryan is a high-profile example).  What is the result of this?  Members do not socialize together as they once did.  The theory is that if people lived near other each, knew each other’s kids, etc, they would be more able to find common ground at work.

Now I am somewhat skeptical of this explanation, but there are some precedents that fit this paradigm.  The unanimity of the Marshall Court is credited in part to the fact that the Justices all lived together in the same boardinghouse when they were in DC.  They are together, drank together, and decided cases together.  When this living arrangement broke down in the 1820s, the number of separate opinions and dissents increased (though there were still few by modern standards).  John Marshall was (as we all know) a clever politician, and he may have realized that socialization=more agreement or compromise.


In some recent research, I was struck by the decline in formal social events that bring together leading figures in DC.  The Justices used to go to the White House once a year for dinner, and there was much more hobnobbing among members of Congress, the Cabinet, and the Justices.  I don’t mean to suggest that some additional rounds of golf between President Obama and John Boehner would have solved all of our problems, but the point deserves more attention.


Summary Reversals and Oral Argument

The first per curium opinion of the Term came out today, an 8-1 reversal on a qualified immunity ruling involving a police officer.  This leads me to ask the following question:  What is the Court’s internal norm on what is required to set a case for oral argument?

If the Justices unanimously think that they should engage in error correction, I can see why they would do so without the full range of briefing and argument.  If they are not unanimous, though, then why wouldn’t the dissenters ask that the case be set for argument?  And is that a decision that occurs via a majority vote, a “rule of four” as with certiorari, or the desire of just one Justice?

Perhaps the answer is that when a case involves error correction the Justices have a tacit agreement that nobody will ask for argument.  (Why they are engaged in error correction at all is another matter.) But what if somebody does not agree that the case is an example of error correction? Moreover, calling for argument internally could result in a denial of certiorari if the other Justices thought that the case did not deserve maximum attention, and that might be a goal of the dissenter.


Self-Driving Cars and Organ Transplants

One of the most significant technological improvements that is on the horizon is the self-driving car, or at least cars with significant self-driving features. This is sure to boost our productivity, as we can do many things while the car is driving us around, and will sharply reduce the number of car accidents.  What could go wrong?

The answer, which occurred to me when I was teaching Torts the other day, is that self-driving cars could create a crisis for organ donations. A disproportionate number of organs that are used for transplant come from vehicular deaths.  It is easy to see why–lots of people killed in car crashes are young and healthy, thus their organs are very desirable for transplants.  If you remove that source, where will people get the kidneys, livers, and hearts that they need? Would we have to contemplate permitting the sale of kidneys or parts of a liver to address the problem?

Granted, technology might also solve the problem of organ supply through 3-D printing of live tissue, but at this stage the self-driving car leads the race for reality.