Author: Gerard Magliocca


The Double Jeopardy Clause and Puerto Rico

One of the cases granted by the Court yesterday raises some intriguing issues that I want to discuss.  In Puerto Rico v. Sanchez Valle, the question presented is whether Puerto Rico and the Federal Government are separate sovereigns for purposes of the Double Jeopardy Clause.  Under Bartkus v. Illinois, a 1959 decision written by Justice Frankfurter, the Double Jeopardy Clause does not bar the United States from prosecuting someone who was acquitted in a state criminal trial.  The Court’s theory was that this part of the Fifth Amendment applies only to a specific level of government–federal or state–that is sovereign. Is Puerto Rico analogous to a state because of its unique commonwealth status, or is it more appropriate to view Puerto Rico as a federal territory that is not a separate sovereign in this context?  Because Justice Sotomayor is Puerto Rican and wrote her Note on the legal status of the island, her perspective should be especially interesting

I hope, though, that some amicus or Justice raises the question of whether Bartkus should be overruled.  The decision rests on a very dubious rationale and, I think, applied incorporation incorrectly with respect to this powerful principle that protects unpopular defendants.  Someone should make this point assuming that the Court decides that Puerto Rico is a separate sovereign.



“Hamilton, the Musical”

Hamilton_smallI am listening to the Broadway cast recording of “Hamilton,” and it is fantastic.  My definition of a great idea is something that sounds obvious once you hear it but was never thought of or done before.  That is true in this case, but with the additional thought that even if I had considered writing a rap musical about Hamilton, I could never have done it.  Some people are just touched by genius.  (The George III songs are particularly inspired, though there many others.)

With respect to Hamilton, I was thinking yesterday that it’s remarkable that he was so influential given he was never elected to anything.  (He may have been popularly elected to be a delegate at New York’s constitutional ratifying convention, but everything else was appointed.)  Indeed, Hamilton may be the most important unelected official in our nation’s history, though there are some Justices with a claim to that title.



Married Filing Separately

I have a question for all of our readers who are tax attorneys.  What is the point of having a separate federal tax status of “married filing separately?”

When I got married, I looked into this filing and concluded that you should do it only if: (a) you were legally separated from your spouse, or (b) you thought your spouse was crooked and did not want to sign a joint return.  Now I understand that there could be other exotic scenarios where a married couple would pay less filing separately, but I’m wondering why this category was created in the first place?  Was there some problem that Congress was trying to address?

P.S.  This is probably my first tax post in six years of blogging.


Voting in Presidential Primaries and Caucuses

A student posed the following question that I thought I’d address:  Is there a federal constitutional right to vote in the presidential nominating contest?  I think that the answer is no. (Suppose a state decided not to have a presidential primary or caucus.  The party bosses could just meet in a room and allocate the delegate’s according to party rules.  Would that violate the Federal Constitution?)

First, there is no right to vote for President.  The Constitution clearly gives state legislatures that right, and the Supreme Court has repeatedly said that there is no individual right to vote here as there is for other offices.  If there is no general right to vote, why would there be one in a party primary or caucus?

Second, there is a long tradition of people not voting for presidential candidates within the two parties.  The Iowa/New Hampshire model of nominating presidents only really got started in 1976, thus I think it would be hard to say that voters have a right to participate in the process.

Now are there any examples of voting restrictions that are specific to a presidential nominating contest that are more likely to be upheld because there is no underlying right to vote?  I don’t think so, but I’m not certain.


Who Wrote This?

Greetings and salutations.  Chasing a toddler around while writing a book has knocked me offline for a while, but I’ve got some posts coming up this week.  Some of them will relate to my Bill of Rights research, as I’ve been grinding my way through hundreds of newspaper articles and periodicals going back to the 18th century to look at how the term was used.

Here is one tantalizing item that I want to discuss.  In September, 1792, an anonymous article “By a Farmer” appeared in a magazine and criticized future Broadway musical star Alexander Hamilton and his policies at the Treasury.  The author opened the article this way:

“As long as the state of America continue under the present form of government, the PEOPLE will have to lament the want of a bill of rights, which would clearly and unequivocally dictate to the legislature its duty, and to the people their rights.”

Anyone see the problem here?  The Bill of Rights was ratified in December 1791.  Evidently Mr. Farmer did not get the memo that this was a bill of rights or that we should celebrate its enactment into law.  The piece then went on to discuss the French Declaration of the Rights of Men, and then commented that the French were a highly enlightened people who:

“Have prefixed a bill of rights to their form of government, not as being applicable to their own situation alone, but as constituting the foundation of every just government.  Had the constitution of the United States a foundation equally firm and equitable; we should not at this day witness the law of the union stained with . . .” [then the author lists several of Hamilton’s initiatives].

What I want to see is if I can determine who the author of this was.  At that time prominent public men often wrote under a pen name.  This one obviously came from a Jeffersonian, but which one?

UPDATE:  The answer is George Logan of Pennsylvania, who earns his 15 minutes of fame as the namesake of the Logan Act.


Happy Constitution Day!

Today, as in ages past, we are not without tragic proof that the exalted power of some governments to punish manufactured crime dictatorially is the handmaid of tyranny. Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement. Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death. No higher duty, no more solemn responsibility, rests upon this Court than that of translating into living law and maintaining this constitutional shield deliberately planned and inscribed for the benefit of every human being subject to our Constitution — of whatever race, creed or persuasion.

Chambers v. Florida, 309 U.S. 227, 241 (1940).


Slavery and the Bill of Rights

95px-CharlesCPinckneyThere were many reasons given by the Framers for the omission of a bill of rights from the original Constitution, but Charles Pickney of South Carolina gave one to his State House of Representatives that was jarring (if honest):

“Another reason weighed particularly, with the members from this state, against the insertion of a bill of rights. Such bills generally begin with declaring that all men are by nature born free. Now, we should make that declaration with a very bad grace, when a large part of our property consists in men who are actually born slaves.”


Declarations vs. Bills of Rights

There are many famous Declarations of Rights.  The Universal Declaration of Human Rights of 1948, the French Declaration of the Rights of Man of 1789, the Virginia Declaration of Rights of 1776, and the English Declaration of Rights in 1689.  Other canonical texts, most notably the first set of constitutional amendments, are described as bills of rights.  What is the difference?

In the modern era the answer seems to be that declarations of rights are aspirational (at least in significant part) while bills of rights are concrete.  In 1991, President Bush stated during the bicentennial of the Bill of Rights that the Framers were practical men who “gave us not a declaration but a Bill of Rights, not a piece of propaganda but a set of legally enforceable constraints on government.” And Mary Ann Glendon’s book on the drafting of the Universal Declaration explains that the authors of that document tended to refer to their work as an “international bill of rights” until they started adding aspirational language, at which point they began calling the draft a “declaration.”

Now this was not the basis of the original distinction between a Declaration and a Bill of Rights.  In 1689, the English Declaration was given that title because that text was the product of a illegal Parliament (sitting without a King). The Bill of Rights of that same year was a duly enacted statute (after William was crowned).

By the Founding-era, though, this distinction was irrelevant.  People used the two terms interchangeably, and some states called its list a “declaration of rights” while some said “bill of rights” even though they looked the same.  This rhetoric continued into the late 19th century, but by 1900 “bill of rights” became the favored term.

Why was that?  I’m not sure, but the answer may be that the Declaration of Independence became THE Declaration for Americans such that calling anything else a Declaration of Rights would have seemed strange.  The Declaration of Independence, of course, was aspirational, which may have led people to view other declarations in that way.

Anyway, food for thought.


The First Congress on How To Amend

I’ve posted previously about the fact that the First Congress debated whether the first set of amendments should be interwoven into the document or listed at the end.  I’ve been reading that discussion as part of writing the new book, and I thought I’d say more about it.

Madison and the other proponents of revising the 1787 text directly made the argument that this would make the Constitution easier to understand.  As Madison said, to do otherwise would mean that the text could only be divined by a comparison of the two instruments, “which will be a very considerable embarrassment.”  It was also noted that the state ratifying conventions that wanted amendments desired that they be written into the text directly.

What were the arguments on the other side?  One was that statutory enactments (whether in the states or in England) typically were just supplements to what was enacted previously.  Sometimes a law did repeal or revise the text of a prior enactment, but often they did not. The response to this was that these practices were irrelevant for a written constitution, and the state constitutions were so new that they had never been amended (just entirely rewritten).

Other arguments for supplementation included: (1) the Constitution was ratified by state conventions, while the amendments would be ratified by state legislatures (though others disputed that this made any difference); (2) incorporating the amendments directly would confuse people by suggesting that the delegates in Philadelphia signed the amended constitution; (3) Article Five only authorized amendments rather than the writing of a new constitution.

We do not know why the House of Representatives made its choice.  The motion to list the amendments as a Supplement was voted down initially, but later passed because (according to a letter by Madison) that was necessary to secure a few votes for the two-thirds needed to pass the entire package.  More on the consequences later.




Conscientious Objections to Following the Law

There is one aspect of the Kim Davis situation that is not getting enough attention.  Let’s suppose that you think that officials like her should be given an exemption from following a law that they think is very wrong on religious grounds. Wouldn’t that mean that religious people would be less likely to get elected or chosen for public office?

Under the exemption scenario, the public or the appointing official would have every right to inquire about the religious beliefs of the candidate or applicant.  Now, of course, a candidate could say “My religious views would not affect my public duties” or “I will always follow the law.”  But people might not believe these statements, or just may be less inclined to take a chance on openly religious people.  Thus, I would think that creating or extending such an exemption would actually harm religious folks who want to serve.