Author: Gerard Magliocca


The Common Law and the Monarchy

Greetings from San Francisco and the AALS Conference!  I went to Alcatraz this morning.  Fortunately, I was allowed to leave.

I like to ask my Torts students what judges use as their authority for making common-law decisions.  The answer is a statute.  Every state has a law that either adopts the common law of England as of July 4, 1776 or the common law as developed when the state was a territory.  In this sense, all common-law is statutory interpretation.

You can make a related point about the Crown.  The source of Elizabeth II’s right to reign is the Act of Settlement (enacted in 1701), which was designed to resolve the succession after the childless Queen Anne died.  Among other things, it bars any Catholic from being the monarch.  Thus, the Queen is really nothing more than the head of an administrative agency with a special religious test attached and without the Chevron deference.



One of the main objects of legal theory is to distinguish formal from operational authorities.  Not every case, of course, is equal.  Likewise, what influences courts is not always what “ought” to.  To take a simple example, Brown v. Board of Education is more important for the law on equal protection than the original understanding of the Fourteenth Amendment, even though text should ordinarily trump case law.

I’ve been thinking about this in the context of the 1960s.  Two points stand out.  First, there is a common understanding that 1968 was a crucial year.  And for good reason–the Tet offensive, the deaths of RFK and MLK, the chaos of the Chicago convention, urban riots, and the close election of Richard Nixon over Hubert Humphrey.  Yet there is no equivalent understanding of that year’s importance in constitutional law.  The closest attempt comes from Cass Sunstein, who argues that the 1968 election was decisive in the rejection of constitutional welfare rights.

Second, the 1960s was by far the briefest “constitutional generation,” as I use that term in my work.  Most of those periods (e.g., Jacksonian Democracy, McKinley Republicans), last about thirty years.  The Great Society/Civil Rights Era, though, basically started in 1964 with Lyndon Johnson’s landslide and ended in 1980 with Ronald Reagan’s victory. Why? The Vietnam War was probably a factor.  The realignment of the South created by the Voting Rights Act was another.

It is hard, though, to ignore the importance of the assassinations of two great leaders of the 1960s generation (three if you count JFK’s death).  The other day I talked about how the shooting of Huey P. Long in 1935 fundamentally altered the New Deal.  Long was the Robert F. Kennedy of his era–he died at 42 and was seen by many as the great champion of the poor.  How would the 1970s and 1980s, for example, have looked different if RFK and MLK had lived?  Maybe the answer is not at all, but it is worth considering.

This is my last post for the year.  Enjoy the holidays!



I am putting together a book proposal for The Forgotten New Deal, which I have posted about several times.  The centerpiece of that story is Huey P. Long–the regime that he built in Louisiana, his influence on the development of the New Deal, and the constitutional consequences of his assassination.  In a nutshell, his premature death had three effects:

1.  It removed a key political lever that was driving Franklin D. Roosevelt to the left.  In anticipation of Long’s presidential campaign in 1936 (either in the Democratic primaries or as a third-party candidate), FDR initiated a wave of reforms in 1935 (including Social Security and a wealth tax).  Once Long was dead, this pressure diminished and the pace of change slowed dramatically.

2.  It cut off a congressional inquiry into whether Louisiana was in compliance with the Guarantee Clause.  That investigation was launched (with the active encouragement of the White House) not long before Long was shot.  Absent the assassination, this process would have continued and made the Guarantee Clause a vital element of the New Deal Constitution. That, in turn, would have weakened judicial supremacy by giving Congress a greater role in shaping constitutional meaning.

3.  It delayed the incorporation of the Bill of Rights by decades.  Litigation was in motion challenging Long’s deprivation of fundamental liberties in Louisiana, and Congress might well have reached similar conclusions in its Guarantee Clause declaration.  These claims would have been much more appealing in the context of a personal dictatorship erected within a state.  When he died, these issues died with him.

In thinking about these issues recently, I think there’s a fourth category.  In 1938, FDR tried to purge the Dixiecrats (conservative Southern Democrats) from the Senate and got his head handed to him in a set of primaries.  This obviously set back the cause of racial justice and liberal reform for many years.

These same Senators, though, were terrified of Huey Long.  In part, that was because he single-handidly elected Hattie Carraway, the caretaker Senator from Arkansas, to a term in her own right in 1934.  (Carraway was the first woman elected to the Senate and was the widow of the previous Senator.)  Long’s campaign for Hattaway was a challenge to the authority of the Senate Majority Leader, Joseph Robinson of Arkansas.  Moreover, Long backed populist candidates to challenge other Southern incumbents.  This threat was so serious that these Senators were willing to support (or, at least, not obstruct) the use of the Guarantee Clause to stop Long, even though that was the legal bogeyman that was used by the Republicans to occupy the South.

In effect, a powerful Huey Long would have forced the Dixiecrats to either tow the White House line (in exchange for presidential support), or be pushed aside by progressives.  I still need to think through the implications of that counterfactual.


Filibuster Reform

I am encouraged by the growing chatter about cloture reform.  On the first day of the new Congress (January 5), the Senate could force a vote on a motion (that can’t be filibustered) holding that a majority can change the rules by confirming or rejecting a ruling by Vice-President Biden (acting as the presiding officer).  If this threat is credible enough, a two-thirds supermajority may come together to stave off radical reform and make a series of more modest (but still helpful) changes to Rule 22.  Stay tuned.


The People’s House

I don’t have an opinion about the merits of the tax compromise that is now being debated in Congress.  One aspect of that debate, though, is rather striking–the Senate is now effectively superior to the House of Representatives.  In other words, the recent pattern is that no matter what the House wants in a controversial bill, the Senate just ignores that and says, “Well, you can either have no bill or whatever 60 of us support.”  And the House caves in to this demand every time.

When will the House grow tired of getting rolled?


Virginia v. Sebelius

I must say that I do not find Judge Hudson’s opinion convincing.  Not only does he misread M’Culloch v. Maryland, as Orin Kerr points out over on Volokh, but the Judge more or less reasons that because the individual mandate is unprecedented it is unconstitutional.  That is plainly wrong.  I am close to finishing a Symposium draft on this question, which I will post as soon as it is ready.


Patents and Free Speech

When I resume blogging (one more symposium paper still to draft), I am going to do some posts about the problem of censorship caused by patent misuse.  Legal scholars spend a lot of time thinking about the free-speech implications of copyright (fair use) and, to a lesser extent, trademarks, but not so much about patents.  This is an error, in part because because patents have been used to squash expression and because they could be used to do that more often now that (post-Bilski) business methods are clearly patentable.


Battle of the Riders — Part II

Last week I posted about the government shutdown fight between Congress and Rutherford B. Hayes.  I thought I would add some more detail about that debate.

In 1879, Congress passed the annual appropriation for the Army.  The Democratic majority in both chambers included provisions in that bill that repealed federal military or civil authority to protect the integrity of federal elections.  This was an obvious attempt to roll back African-American suffrage in the South in a way that would be hard to veto.

President Hayes did veto the bill, though, on procedural and substantive grounds. With respect to the procedure of tacking unrelated substantive legislation onto a revenue bill, he argued that this practice “did not prevail until more than forty years after the adoption of the Constitution.”  (I have no idea if this is true.)  He added that many States had rejected this tactic by providing in their constitutions that no law shall contain more than one subject.  (Is this still true?)  He also said that “[i]t is clearly the constitutional duty of the President to exercise his discretion and judgment upon all bills presented to him without constraint or duress from any other branch of the Government.”  (Definitely no longer true.)

Congress tested the President’s resolve by putting the same election law reforms into more appropriation bills, and Hayes continued to issue vetoes. Eventually, the Democrats backed down.  (The repeal of the voting provisions in question did not occur until the 1890s.)  Tacking, though, is still alive and well.

On an unrelated note (we might call that “post tacking”), I will probably be offline for the rest of the month, as I have two symposium papers to complete before the holidays.  We’ll see how long I can actually refrain from posting.