Author: Gerard Magliocca


A New Take on Originalism

“Our nation was founded on violence.”

Stephen Broden, Republican candidate for Congress in the 30th District of Texas.

UPDATE:  Personally, I prefer Jefferson’s way of saying this.


Ronald Reagan and Gay Rights

I wanted to follow up on my post on Monday reproducing Ronald Reagan’s 1978 op-ed against Proposition 6 (the “Briggs Amendment”), which would have barred gays from teaching in public schools.

The first thing that struck me was that Reagan linked his opposition to that measure to his opposition to another ballot measure that would have expanded state regulation of smoking.  This libertarian rationale was probably intended to ward off criticism from social conservatives who supported Proposition 6 (and seems to have worked).  (Personally, I agree with most of what the op-ed said about anti-smoking laws–I’m much more of a “live and let live” type in that respect, but that argument has not fared well over the past thirty years.)

Second, his argument against Proposition 6 was based in part on an overbreadth claim, especially with the measure’s language about prohibiting the advocacy of a gay lifestyle.  Reagan correctly pointed out that this could curtail the free speech rights of teachers outside of the classroom (even for straight teachers) and should be rejected on that basis.

Finally, he made the point that sexual orientation is determined very early in life.  He didn’t quite say that it was a inborn trait, but if you say that teachers don’t influence that much then that would imply that it must be set before you start school.

Anyway, the entire op-ed is definitely worth reading.  That’s why I put it up.


The Origination Clause

Article I, Section 7, clause 1 provides that “[a]all bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.”  This rule was carried over from the practice in Parliament, though in a much weaker form.  The Glorious Revolution established a constitutional custom that the House of Lords could not propose or concur with amendments to revenue bills from the House of Commons.  When the Lords rejected that limitation in in the early twentieth century, the threat of Lords-packing was used to end their absolute veto over all legislation.  (Under the current version of the Parliament Act, revenue bills are still privileged — the Lords can delay all other legislation for up to a year but can only hold up revenue bills for a month.)  Imagine a world when the House of Representatives had exclusive power over taxes and spending!


George Washington and James Madison

I am working my way through Ron Chernow’s terrific new biography of George Washington.  From a constitutional perspective, it’s interesting to reexamine how the Framers tried to figure out the practices of the new Government in 1789.  For instance, Washington came to the Senate in person a couple of times to complain or ask questions about some items of legislative business.  In effect, he was treating the Senate as the King treated the Privy Council, but quickly abandoned that model.  I was also charmed by the image of Washington going on a fishing trip with Jefferson and Hamilton in 1790. (My nominee for “smartest fishing boat” of all time.)  And I did not know that Washington became gravely ill in 1790 and that John Adams nearly became President then.  (That would have been a disaster.  No matter what David McCullough and Paul Giamatti say, that guy was a ridiculous pain-in-the-neck with almost no political skills.)

My favorite story, though, was that James Madison drafted Washington’s First Inaugural, drafted Congress’s reply to the Inaugural, and drafted Washington’s reply to the reply!  Do you feel lazy now?  I sure do.


Ronald Reagan and Gay Rights

In 1978, California voters rejected Proposition 6, which would have barred gays from teaching in public schools.  The defeat of Prop. 6 is often attributed to Ronald Reagan’s opposition to the measure, as expressed in a Los Angeles Herald-Examiner op-ed right before the election. (He probably didn’t write the op-ed himself.  While he did write the radio addresses that he gave in this period, the newspaper columns were typically drafted by his aides.)

I was interested in reading this, but to my dismay I found that it was not available online. So when I was in DC last week, I went to the Library of Congress and got it. Below the fold is a reproduction of the op-ed.  I hope this will be helpful to Reagan scholars.  I’ll comment on what he had to say in a separate post.

Read More


Another Problem with Challenges to the Individual Mandate

The Federal District Court in Florida decided this week, following two other District Courts, that it can reach the merits of something that won’t take effect for more than three years.  Since no court thus far has decided that discretion is the better part of valor when it comes to the individual health insurance mandate, I guess maybe it’s time to mothball that argument.  (So much for judicial restraint.)

With respect to the merits, let me expand on something that I said in a prior post.  Opponents of the mandate say that it is unprecedented for Congress to use its Commerce Clause power to regulate inactivity or compel activity.  Of course, it is not unprecedented for Congress to use its powers to regulate inactivity or compel activity.  We draft citizens for military service, juries, and paying taxes.  What distinguishes those activities?   The leading argument, at least in the briefs and in some of the academic commentary, is that those are basic duties of citizenship, whereas buying health insurance is not.  (Of course, the health care reform act itself arguably makes the purchase of health insurance a basic duty, but let’s leave that aside.)

A potential problem with this claim, however, is that we already have a fundamental right to health care.  It’s called going to the emergency room for free.  This right is pretty well-established both in terms of its age (since the 1980s) and in the settled expectations surrounding its exercise.  The argument against the mandate, though, holds that there is no corresponding duty to pay for that health care if you can.

Accordingly, I’m not sure why the mandate should be seen as an unconstitutional unfunded mandate.  Why isn’t this more properly assessed as an attempt to create a constitutional right to free-ride ?  Now I suppose a plaintiff could say, “I don’t want to buy health insurance, and I will never accept free medical treatment from an emergency room.”  Maybe that guy is analogous to a conscientious objector to the draft and we should say that he cannot be required to buy insurance. (I think that if Congress had not exempted those with religious objections from the health insurance mandate, then it would be unconstitutional as applied to them.)  I don’t see, though, why somebody who is happy to take the free health care in the ER can claim that he has a right not to pay for it.

UPDATE:  On reflection, the conscientious objector does have a constitutional right to free-ride.  So I suppose what I’m really saying is that you need a more specific showing than just “I don’t want to buy health insurance” to succeed.

UPDATE #2:  You could even go further and argue that this is a constitutional right to welfare claim in disguise.  (“I am entitled to health care without having to pay for it.”)


The Tragedy of William Jennings Bryan

My book is now available for pre-order on Amazon.  All of the bells and whistles on that ad (e.g., “I couldn’t put it down.”  — The Dalai Lama) will soon follow.

UPDATE:  When I ask people to buy the book, I can’t help but think of the line from Mayor Quimby’s reelection ad:  “If you were running for mayor, he’d vote for you.”


What’s The Rush?

I said I would be offline this week, but then I saw that the District Court in Michigan upheld the constitutionality of the individual health insurance mandate.

Now this case and the others that are pending are very interesting for those of us that follow these issues. And I hate to be the skunk at the garden party, but . . .

The individual mandate does not come into effect until 2014. The last time I checked, this is 2010. It seems to me that the proper response to all of these cases is to say, “Your challenge is not ripe (or you have no standing). Take a hike.”

Can you come up with a plausible argument that the merits can be heard now? Sure. But why is that warranted at this point?


Constitutional Esoterica

I’m a law nerd.  I’d have to be to do this all of the time.  So a delight for somebody like me is to come across an obscure constitutional provision that was important in a particular case.  This recently happened as I was writing up my paper on the Gold Clause Cases.  The argument of the bondholder in Perry v. United States was that the Federal Government could not substantially repudiate (or devalue) its obligations by reducing the gold content of the dollar and applying that change to Treasury bonds issued prior to the revision.  In support of that argument, they cited, among other things, Section 4 of the Fourteenth Amendment.  I submit that even most constitutional experts don’t know what Section 4 says.  Here it is:

“The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.”  [The rest of Section 4 says that neither the United States or any state shall pay Confederate debts or compensation to slaveholders.]

The bondholder in Perry claimed that the substantial devaluation of Treasury bonds was questioning the validity of the public debt contrary to Section 4’s command.  What’s more, the Supreme Court agreed.  Chief Justice Hughes’ opinion for the Court stated that Section 4 was “confirmatory of a fundamental principle” about the “integrity of the public obligations.” Of course, the Chief Justice then turned around and said the bondholder had no remedy for this constitutional violation (on pretty shaky grounds).  And, as far as I know, that was the last time anyone cited Section 4 to the Court.  Until, of course, somebody decides to litigate the deliberate creation of inflation by a future Congress or Federal Reserve.

UPDATE:  I’ll be offline for the next week-and-a-half for Fall Break.