Author: Gerard Magliocca


Conference on Property Rights

My colleague at IU–Indy, Dan Cole, is organizing a terrific conference on the “Evolution of Property Rights Related to Land and Natural Resources” with Elinor Ostrom, who won the Nobel Prize in Economics last year.  A description of the event, which will be held in Cambridge, MA on September 20-21, is here.


The Private Action Requirement

I’m going to break my “don’t-post-twice-in-one-day” rule because something is bugging me.  On Monday I suggested that one way to assess the arguments being made against the constitutionality of the individual health insurance mandate was to look at constitutional text and doctrine for other places where a distinction is made between action and inaction.  The comments to that post, rightly I think, said that this basically won’t get us anywhere.

Another idea occurs to me though.  Folks like Randy Barnett rely heavily on the idea that congressional regulation of inactivity (or commercial coercion) is unprecedented under the Commerce and Taxing Clauses.  But isn’t it is equally unprecedented to establish a “private action” limitation on congressional authority pursuant to those provisions.  Where does that doctrine come from?  There’s no case law to support the concept, for example.  Thus, each side in the litigation wants courts to do something new–either by upholding or invalidating the individual mandate.  It’s a jurisprudential wash.

The closest analogy is the state action requirement, which developed after Reconstruction and is still controversial.  Some people think it was a proper interpretation of the Fourteenth Amendment.  Others think that it was a distortion designed to protect federalism at the expense of the text.  Now people might say that, even if it was a distortion, it should be retained due to stare decisis concerns.  But extending the doctrine into the private realm (again to protect federalism) is something else. If you think that the state action doctrine is correct on the merits, then I think the argument for a related limitation in the Commerce Clause makes more sense.  If you don’t believe that the state action doctrine is sound, then you should have the same skepticism for a private action doctrine.


The Forgotten New Deal — Populism

What is the connection between the New Deal and the Populist movement led by William Jennings Bryan? The standard answer is–not much.  Historians like Richard Hofstadter liked to emphasize the influence of the Progressive Era on Franklin D. Roosevelt, and it’s hard to find two political leaders with more different personalities or agendas than FDR and Bryan.

On the other hand, there should be a connection.  Every constitutional generation is influenced by its predecessor.  The jargon term I use for this is the “feedback effect.”  For instance, abolitionists developed their doctrines in reaction to Jacksonian Democracy.  And conservatives developed their jurisprudential outlook in response to what happened during the 1960s.  So why isn’t the same true for the New Deal?  (Yes, the Populists lost, but that should just speak to the strength of the link, not its existence.)

The revisionist answer is that the New Deal came very close to becoming a rerun of Populism but for two critical events — the decision in the Gold Clause Cases and the assassination of Huey Long.  If either of these had gone the other way, then FDR would have taken a much more Populist approach.  Accordingly, it turns out that 1935 was just as important, if not more so, to the evolution of New Deal Constitutionalism than 1937.  I’ll talk about that next week.


The Forgotten New Deal — What If?

Yesterday I wrote that my next project will be about the New Deal.  This post provides an overview of that research and explains how it relates to my first two books.

The theme of my 2007 book on Jacksonian Democracy is that there is a “generational cycle” in constitutional law.  My forthcoming book on William Jennings Bryan locates the Populists of the 1890s within that cycle and focuses on the idea of failure, since their defeat led to a transformation in doctrine that was as profound, if not more so, than the success of the Civil Rights Movement.

The New Deal was another turning point in the cycle, but here I want to contemplate the contingency of constitutional outcomes. It’s one thing to say that there is a pattern in our politics that tells you when significant legal change is likely to occur.  What that change will be, however, is highly dependent on personalities and luck.  The best example comes from the Jackson book, which explains why William Henry Harrison’s death in 1841 saved M’Culloch v Maryland from being overruled. Not all constitutional generations have these moments (though think about how different the 1980s would have been if John Hinckley had killed President Reagan), but the New Deal had more of them than any other.  Put another way, this is a “What If?” book that will examine how close the New Deal came to going in different directions.

Let me set up the subsequent posts by listing several questions:

1.  What was the relationship between the Populist movement and the New Deal?

2.  What would have happened if the Gold Clause Cases went the other way in 1935?

3.  How did Huey Long’s assassination change constitutional doctrine in 1935?

4.  Suppose, as was original intention, Justice Van DeVanter had retired in 1933?

5.  What if the assassination attempt against FDR had succeeded and John Nance Garner had become President?

6.  How would the Court-packing plan have looked different if the Child Labor Amendment had been ratified?

7.  Which year was more important for the New Deal–1935 or 1937?

More to come . . .


The Forgotten New Deal

I just finished the final edits on my book about William Jennings Bryan and Populism.  (I guess this means it will come out in the spring, though obviously that’s not up to me.)  Working through a long manuscript like this is great for sparking new ideas–it exerts a hydraulic pressure on the mind.

The main thing that I figured out while doing these edits is the subject for my next book.  (By next, I probably mean after I write the Bingham biography, but I’m not sure.)  It will be called “The Forgotten New Deal,” which is a nod to Amity Shlaes’ revisionist book on the 1930s (“The Forgotten Man”).  I’m going to spend the next several days posting about this project, in which Huey Long (“The Kingfish”) will play a prominent role.


Proof of the Living Constitution Theory

I got an update to my iPhone Constitution app.  It’s version 1.3.8.

UPDATE:  Of course, there is a typo in the 25th Amendment (Section 4 says “department” instead of “departments”). Maybe somebody fixed that.


The Action/Inaction Distinction in the Constitution

I noted in a prior post that a crucial issue for the constitutional challenge of the individual health insurance mandate is whether there is a meaningful distinction between the regulation of activity and inactivity.  Opponents of the mandate are saying that there is and that making folks buy insurance when they do not want it constitutes the regulation of inactivity.

One way to approach this problem, I thought, was to see where a distinction is made between constitutional action and inaction.  The answer is–almost never.  Here’s what I came up with:

1.  The State Action doctrine under the Fourteenth Amendment.

2.  Presidential Review of a bill.  (Article II says that the President can sign a bill, veto a bill, or do nothing and let it become law without his signature.  Two actions and one non-action.)

3.  The Treason Clause refers to an “overt act” as necessary proof (though a confession in open court will also suffice), which clearly suggests that an omission is not enough.

Can you come up with anything else?

UPDATE:  Perhaps a better way to frame this question involves asking where the Constitution makes a distinction between private action and inaction, which is what the challenge to the individual mandate involves.  In that case, I think that the Thirteenth Amendment example given in the comments is the only one.


Federal Assumption of State Debt

A few weeks ago I posed the question of whether a state has the right to default on its debt if Congress objects.  The most relevant precedent is the federal assumption of state debt in 1789, for if that was done over the objection of a state that would suggest that the Tenth Amendment does not give a state absolute control over the servicing of its debt.

I did some research and learned that Alexander Hamilton’s plan was hotly debated in Congress and passed by a narrow margin, largely along sectional lines.  (The North liked the idea; the South did not.) I cannot, though, find any evidence that a state government formally objected, either through a legislative resolution or a Governor’s Proclamation.  (There was no state litigation about the issue.)  If anyone does know of such an objection, I’d like to hear about it.


Indiscriminate Searches

Not long ago I was at the store buying a bottle of wine when the checkout person asked me for my ID.  I smiled at the thought that someone might think I still looked like a teenager, until I learned that the request was because of a new state statute that requires retail vendors to verify the age of all purchasers of alcohol–no exceptions.  So even Grandma must now produce her driver’s license if she wants to buy booze in Indiana.

This strikes me as pretty ridiculous.  Granted, some vendors look the other way when people under 21 buy alcohol, but is the solution really to make them card senior citizens?  Let’s hope no other states go in this direction.


Resource Allocation in “The Godfather”

Yesterday I was watching “The Godfather” for  . . . oh . . . about the millionth time and something struck me.  A problem in all three movies is that the Corleone Family wants to treat its resources as property while the other dons want to enforce a sharing norm, which they describe as “wet our beaks.”

In the first film, Don Vito refuses to provide legal protection for the drug trade.  This leads to a war that is settled at a conference where Don Barzini offers the following critique of having a property rule for corrupt officials:

“Times have changed. It’s not like the Old Days — when we can do anything we want. A refusal is not the act of a friend. If Don Corleone had all the judges, and the politicians in New York, then he must share them, or let us others use them. He must let us draw the water from the well. Certainly he can — present a bill for such services; after all — we are not Communists.”

What Don Barzini is describing is a compulsory license backed by some kind of reasonableness standard. In other words, the Mafia does not set a price schedule for using another Family’s assets.  It just asserts that no right of exclusion exists and, presumably, if the “bill for such services” is too high, then that would violate the norm and could lead to violence.  I also find it interesting that Barzini embraces this compulsory license as an example of capitalism, since there are folks who think of such a mechanism as excessive regulation (at least when imposed by the state).

UPDATE:  Yes, “Take The Cannoli” would have been a better title for the post.