Author: Gerard Magliocca


The Third Amendment and the War on Terror

I’ve long wondered — mostly in jest — whether the Third Amendment says anything meaningful for modern constitutional analysis.  Griswold v. Connecticut cited the Amendment as support for the “right to privacy,” but that’s the only time it’s really been used.  But here’s an thought experiment (partly fun, partly serious).

Here’s the text of the amendment:

“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

Most people overlook the fact that this means Congress has the power to quarter soldiers in your house during a war (it just needs to pass a law to do so).  If the Third Amendment is construed as expressing a privacy principle, then this suggests that Congress has greater latitude to invade our privacy during a war.  Of course, this begs the question of what “war” means.  Does that mean there must be a declaration of war?  Or is it just “not peace,” given that peace is stated as a condition in the preceding clause?  If Congress decides that we need to put soldiers in private homes to fight the war on terrorism, would that be constitutional?

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Back to the Commerce Clause

The upcoming Supreme Court term could be the most consequential of the last decade.  I’ve already done some posts about Bilski (the patent subject matter case), and now I want to do one about United States v. Comstock, which will the first significant Commerce Clause case for the Court since the addition of Chief Justice Roberts, Justice Alito, and Justice Sotomayor.

Comstock addresses 18 U.S.C. s. 4248, which gives the Attorney General the power to order the civil commitment of “sexually dangerous” persons in the custody of the Bureau of Prisons after their criminal sentence expires.  The Fourth Circuit held that this provision was unconstitutional under United States v. Morrison, in part because s 4248 lacks a sufficient relationship with interstate commerce and intrudes on an area that is traditionally governed by state law.

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AALS Hiring Process

So as the hiring chair at my school, I’m currently wading through hundreds of resumes.  I thought I’d make a few observations about them as a group, though this is obviously an “inside baseball” post that won’t be of interest to many of you.  Thus, the rest of it is after the jump.

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Federalism and the Death Penalty

I thought I would flag an interesting issue from U.S. v. Fell, 571 F.3d 264 (2d Cir. 2009) (denial of rehearing in banc).  Two people commit three murders and cross state lines in the process.  Federal prosecutors in Vermont (the state that is deemed to be the proper venue for trial) decline to seek the death penalty in part because Vermont does not have the death penalty.  The DOJ overrules this decision and orders that the death penalty be pursued.  A Vermont jury convicts and sentences the defendants to death.

What are the federalism implications of this case?  One thought is that if a state bars capital punishment, federal prosecutors should take that into account when deciding what sentence to seek. They would not, however, be bound to reject capital punishment just because the state does not have it.  Another is that the application of the death penalty in a state that does not have it is “unusual” and raises a valid Eighth Amendment claim for anyone who receives that federal sentence.  A third idea is that obtaining a “death qualified” jury in a state that opposes capital punishment requires the dismissal of so many jurors that it creates a Sixth Amendment claim.  Finally, one might say that all three of these questions depend on the nature of the offense.  If somebody assassinates the President or sets off a dirty bomb in a state that lacks capital punishment, few would be troubled if the feds superseded state law.  A crime that looks like a garden-variety murder, however, might be a different story.


Rolling the Dice in California

William F. Buckley, Jr. once famously said that “I’d rather entrust the government of the United States to the first 400 people listed in the Boston telephone directory than to the faculty of Harvard University.”  Voters in California may get a chance to test that idea.  “Repair California” is seeking to put an initiative on the state ballot that would call for a state constitutional convention and (try to) limit its mandate.  More important, the initiative would provide that the delegates be chosen randomly from the adult population of the State. That’s right — random selection.

It’s the ultimate form of campaign finance reform.


Extra-Canonical Texts

In a previous post I talked about the idea — advanced by many scholars — that there are certain statutes that are effectively part of the Constitution.  (The Civil Rights Act of 1964 being one example.)  That got me to thinking about other documents that might serve this function.  In other words, if you asked most people to provide a list of our most important texts, they would probably mention the Constitution and the Bill of Rights.  But they would also mention things that are not authoritative but still command respect because of the force of their reasoning.  A tell-tale sign of these “extra-canonical” documents is that they are the ones that kids are taught in school and get cited by courts.  What falls into this category?

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Game Theory and Law

Yesterday The New York Times magazine profiled Bruce Bueno de Mesquita, who was a professor of mine at Stanford and is a leading figure in using game theory to predict political and social outcomes.  His was the best class that I ever took as an undergraduate.  (Honestly, ten years out of school, how many classes do you look back on and think, “Wow, that was really terrific.”)  One lesson from that course that I took into my legal scholarship is that you have to study near-misses as well as successes to understand a phenomenon. He made us look at foreign policy crises that did not lead to wars and asked “Why not?”  This is pretty good model for thinking about law, especially in the constitutional area.  Indeed, my forthcoming book on the Populists and article on the defeat of the Child Labor Amendment apply that concept aggressively and yield some interesting insights as a result.


The Drinking Age and the Twenty First Amendment

90px-Betsy's_usual_(Dirty_Martini)Concern about the costs of binge drinking are leading many university presidents to ask whether the drinking age should be lowered to 18.  A major obstacle to this idea, though, is that Congress removes 10% of a state’s federal highway funding if the drinking age is below 21. Everyone knows that Congress possesses broad discretion to put strings on federal funds, so presumably a state that wants to change its drinking age has to either accept this 10% penalty or convince Congress to change the law.

Well, maybe not.  The Twenty First Amendment (which repealed Prohibition) provides in Section Two that “The transportation or importation into any State . . . of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”  This is one of the few parts of the Constitution that contains an affirmative statement of state sovereignty.

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More Carrots, Fewer Sticks

One project that I’m working on (but haven’t written up yet) is about using120px-Falling_hare_bugs liability rules to reward socially useful behavior.  The law is replete with civil and criminal sanctions against wrongful conduct.  Public policy is also enthusiastic about using property rights to encourage innovation or investment.  Less attention, though, is given to what I call “rewards” for positive action.

Consider the concept of salvage in admiralty.  Salvage is a liability rule that gives a vessel a claim against another vessel for a reward (determined ex post by a court) when a successful rescue is made.  This is more effective than imposing an affirmative duty on vessels to help others and sanctioning them if they do not, largely because the enforcement costs of such a duty would be prohibitive.  Likewise, there is no property rule that can achieve the worthy objective of preventing ships or their cargo from sinking once they are in distress.  Other rewards are set ex ante by an administrative body and tailored to a particular issue.  For example, the police often offer rewards for information leading to the arrest of a suspect.  This is better than threatening people with accomplice liability.

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Who is Homer Plessy?

In my research for the William Jennings Bryan book that I’m writing, I’ve learned something interesting. There is no credible public domain picture of Homer Plessy, the named party in Plessy v. Ferguson.  There are pictures that claim to be of him, but they cannot be verified because in many instances people have taken photos of other prominent African-Americans and called them pictures of “Homer Plessy.”  So be careful if you are doing work in this area.