Author: Gerard Magliocca


The Forgotten New Deal — John Nance Garner

Consider the following accident of history, which comes from Bruce Ackerman, not from me.  In 1933, an assassin fired on a car carrying Franklin D. Roosevelt and the Mayor of Chicago.  The Mayor was killed. Suppose, instead, that FDR had been killed.  The Presidency would have passed to his Vice-President, John Nance “Cactus Jack” Garner, who was a conservative Southern Democrat.  President Garner would have been far more likely to veto liberal initiatives coming from an overwhelmingly Democratic Congress.

Does this sound familiar?  It should.  Something like this happened when Lincoln was replaced by Andrew Johnson.  The congressional response at that time was to pass the Fourteenth Amendment to bypass the President.  If Lincoln had not been shot, there would have been no need for the Fourteenth Amendment.  Broad statutes, enforced vigorously by the Executive Branch and combined with the appointment of sympathetic Justices, would achieved much the same result.

I bring this up for two reasons.  First, it suggests that the difference between the decision to use Article Five and a decision not to do so may turn on random events that have nothing to do with constitutional philosophy.  Second, we could ask which was the better scenario — the textual version or the nontextual one?  The New Deal would have been placed on a firmer footing if there were some New Deal Amendments, but then again the Reconstruction Amendments were thwarted for decades after their ratification and in that sense were less successful.


The Google Book Settlement

My Law and Technology class is looking at the proposed Google Book Settlement this week.  This is the first time that I have focused on that problem, aside from reading posts about it by my co-bloggers, of course!  A decision on approving the class action settlement is still pending in the District Court, and I’m not in a position to assess the proposal’s merits. But I can say something about the process involved.

The effort to create a comprehensive digital library is a classic example of a mismatch between ends and means.  Most people agree that having every book scanned and available to researchers online would be great.  The difficulty is that there is no way to accomplish this under existing law.  Congress could overcome that obstacle by passing a new statute that modified copyrights still in force (and either made Google or the Library of Congress the repository for the digital scans) but that probably won’t happen due to a lack of interest.  Since the copyright statutes are clear that affirmative permission must generally be obtained from a rights owner, which would be prohibitively expensive from a transaction cost perspective, courts are hard-pressed to use their common-law creativity to develop a compromise.  (Yes, they could invoke fair use, which is plausible given the opacity of that doctrine, but given the penalties for copyright infringement that would force Google to take a risk that it evidently chose not to take.) The use of the class action mechanism is a clever attempt to evade the statutory requirements, but there are serious doubts about whether this is acceptable.

As a Torts teacher, I’m struck by the parallel to the DES cases from thirty years ago.  In that situation there was broad agreement that something should be done to compensate the injured children of mothers who took DES.  Traditional notions of but-for cause, though, barred recovery.  Congress could have imposed a solution (and that might have been the best approach), but nothing was done.  So many courts just abandoned strict but-for cause and developed a market-share theory to assess liability.  That was reasonable (no matter what you think about its merits) because there was no statute involved.  The Google project cannot be so easily accommodated.



If you want to see a tough book review, check out David Frum’s short essay in today’s New York Times on Laura Kalman’s new book.


Unfaithful Interpretation and The Gold Clause Cases

The other day I said that the Court must sometimes break with the view that constitutional interpretation is about being faithful.  What’s my definition of unfaithful interpretation?  To avoid arguing about the merits of cases that people might think were wrong or right, here’s my idea. Unfaithful interpretation is when a court declares that somebody has a right but, for prudential reasons, will get no remedy.  It’s not that a remedy cannot be given (because of a statute or a doctrine) or that it’s only a partial or delayed remedy; the Court decides that it’s just a bad idea to provide any remedy.  I think this is unfaithful if you assume that remedies and rights should be linked absent some contrary authority. Moreover, denying a remedy for prudential reasons undermines confidence that the legal analysis was done in good-faith.

What are some examples?  Marbury, for starters.  Sure, the Court said that it could not give him a remedy because that would be unconstitutional, but nobody thinks that Marshall’s reading of the statute there was anything other than a dodge.  Worcester v. Georgia is another example, as the Court did not issue the mandate and thus left Worcester to sit in a Georgia jail until further notice.  Ex Parte McCardle is another, as the Court could have issued an opinion on the merits in that case before the jurisdiction-stripping statute took effect but chose not to.  Giles v. Harris, which I talk about in my new book on Populism, involved the Court’s refusal to give a remedy to African-Americans denied their suffrage rights in the South.  The Gold Clause Cases, which will be the focus of my next Article and which I’ve posted about, is the least-well known instance of unfaithfulness.

What connects these cases?  There was a deep fear among the Justices that providing a remedy would:  (1) expose the Court to institutional damage; (2) lead to an adverse political outcome; or (3) both.  Now, the question is, should the Court be unfaithful in these situations?  Isn’t that getting dangerously close to saying that there is a higher law above the Constitution? (Judicial self-preservation?  The Constitution is not a suicide pact?) Or does it suggest, as I suggested on Monday, that interpretive theory is wrong when it presupposes things like “integrity” or “fidelity?”

I’m not sure, which is why I think this might be a good paper.

UPDATE:  In response to some of the comments, let me add this.  Yes, the argument here is premised on the idea that rights and remedies should be linked.  (After all, there must be some way of determining whether an action is unfaithful that can reach beyond a particular interpretative theory.  I’m not sure that there is a better alternative.)

So the other thought is “Well, suppose my theory says that it should be followed unless doing so would lead to a bad result.  In that case, I’ll refuse to provide a remedy.  And if I do refuse, I’m being faithful to my theory, not unfaithful.”

That is true.  Of course, it’s only true if that is your theory.  Is refusing to provide a remedy evidence of support for that theory or evidence to the contrary?  After all, the cases themselves don’t describe what they’re doing as consistent with some broader principle.  Instead, they usually try to hide the inconsistency.  Evidence of a guilty conscience, methinks. But maybe not — I’ll have to think about that.

UPDATE #2 — Perhaps this is really about interpretive “necessity” rather than “unfaithfulness.”


A Pitfall of Constitutional Analysis

Orin Kerr’s comment to my post from earlier today brings to mind this quote from Walter Bagehot:

“There is a great difficulty in the way of a writer who attempts to sketch a living Constitution–a Constitution that is in actual work and power.  The difficulty is that the object is in constant change.  An historical writer does not feel this difficulty:  he deals only with the past; he can say definitely, the Constitution worked in such and such a manner in the year at which he begins, and in a manner in such and such respects different in the year at which he ends; he begins with a definite point of time and ends with one also.  But a contemporary writer who tries to paint what is before him is puzzled and perplexed; what he sees is changing daily.”

Puzzled and perplexed indeed.


About-Face: The Republican Wave

This is a long post that discusses some substantive issues and offers some thoughts about academic writing.  So I’ll put much, though not all, of this below the fold.

So I’ve been drafting an article on “The Obama Generation and the Supreme Court.”  (I posted the Abstract here in July). The premise of that paper was that the 2008 election was an electoral realignment, and I was then going to assess the likelihood that the Court would strike down the individual health insurance mandate.  I knew that the GOP would win seats this fall, but I figured that the victory would be within historical norms for a first midterm.

Er . . . now I’m thinking that I was wrong.  The Republican wave is looking big–really big.  Of course, things could change in the next two months.  One thing, though, is clear.  If the Democrats lose both houses of Congress after going into the election with such large majorities, then calling 2008 a realignment would be absurd.  (You might say that this is the academic version of “You’re gonna need a bigger boat.”).

Suppose November is a train wreck for Democrats.  That opens up another possibility that I’ve posted about. Perhaps the President is the second coming of William Jennings Bryan.  In other words, his chief achievement will be the backlash that he generates.  Granted, that thought is fresh in my mind because I have a book coming out about that period, but you could make the case on other grounds.  That too, though, runs into a problem.  It assumes that the GOP will win in 2012. If not, then that analogy doesn’t work either.

My conclusion:  Put this Article on ice for now.

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Unfaithful Interpretation

Normally I run away screaming when somebody starts discussing interpretive theory.  That’s partly because I just don’t find the subject that interesting, but another reason is that I’ve always seen an interpretative approach as nothing more than a presumption that is always riddled with so many exceptions that it’s hard to figure out what the presumption is.

There is a thought, though, that occurs to me, with apologies if it’s already out there.  The premise behind most arguments about interpretation is that the goal is to be faithful to the source.  Now, of course, reasonable people disagree about how to do that.  Maybe it’s textualism, maybe it’s originalism, maybe it’s living constitutionalism, etc.

There are instances, however, in which that is not an accurate description of interpretation.  A better characterization is that interpretation is about justifying a result that everybody wants even though it not in the source.  In other words, some exercises of interpretation are not about being faithful at all.  They are about being unfaithful.  I wonder, though I haven’t thought this through, how that changes one’s view of the best interpretive theory.

By the way, if you’re looking for an example of “unfaithfulness,” consider Bolling v. Sharpe, which is really hard to square with the legal materials available in 1954, even though everybody thinks that result was right and necessary.


The Forgotten New Deal — The Kingfish

I’ve already written an article about the relationship between Huey Long and the Guarantee Clause (along with a blog post about that article a year ago) and I don’t want to repeat myself.  Nevertheless, there is a twist on that work that is relevant to my previous posts about the relationship between Populism and the New Deal.

Long was the political heir of William Jennings Bryan, even taking his slogan of “Every Man a King” as his own. His growing national popularity in 1935 posed a real concern to FDR and helped contribute to his lurch to the left (“The Second New Deal”) that included Social Security and a wealth tax.  The assassination of the Senator by Carl Weiss (in September 1935) removed that threat.  Without getting too much into the details of Long’s presidential plans for 1936, it is safe to say that a live Long would have pushed the Administration in a more populist direction, just as a different outcome in the Gold Clause Cases would have.

My article makes the point that Long’s authoritarian regime in Louisiana (which crumbled after his death) was on the brink of leading to a series of cases raising the incorporation issue in the Supreme Court (one of which — on freedom of the press — was decided by the Justices in 1936) that would have been likely to succeed simply because the abuses under Long were so egregious.  In other words, incorporation probably would have happened a lot sooner.  Furthermore, prior to Long’s death Congress had started an investigation of Louisiana pursuant to the Guarantee Clause, which might well have led to a congressional declaration about fundamental rights and minimal democratic safeguards in the states long before that occurred, for example, in the Voting Rights Act.


Who Owns the Sky?

I taught the first class of my Law & Technology Seminar today, and I used Stuart Banner’s terrific book on Who Owns the Sky? If you haven’t read this, you really should.  He discusses how the law responded to the invention of airplanes, with respect to the rights of property owners, sovereign rights over airspace, and other issues.  In part, it’s refreshing to read a book about a problem that was solved (and seems obvious now) but was not at the time.  (My favorite example was the guy who argued that planes should just fly over roads and public lands, then there would be no trespass issues.)


The Forgotten New Deal — The Gold Clause Cases

Last month I wrote two posts about The Gold Clause Cases, in which the Court upheld (5-4) FDR’s decision to take us off the gold standard in 1933.  Those posts focused on some unusual aspects of the opinions and on the President’s determination not to comply with an adverse outcome.  Now I want to think more broadly about the implications of this moment.

Everybody knows that the central issue of the 1896 presidential campaign was whether we should have a gold standard or bimetallism (a gold and silver monetary base).  Bryan’s defeat did not make the gold standard constitutional (at least no case said so), but it did establish that system as fixed point for American politics.  As a result, FDR’s decision to break with gold was a bold repudiation of the consensus that had prevailed for a generation.  Since consensus often turns into constitutional law (whether that consensus is in the text or not), the Gold Clause Cases in early 1935 marked the first crucial clash between the New Deal and the Court.

The currency issue disappeared from public discussion because the Court validated FDR’s policy, but what would have happened, if, for example, Justice Brandeis had acted on his view that the policy was unconstitutional.  (Brandeis, it is worth noting, voted for McKinley in 1896.)  First, the gold standard would have become the central issue, especially since FDR was ready to take a stand and create a crisis by rejecting the ruling.  Second, that confrontation would have energized the Populist voices in the country, as insurgents like Huey Long and Father Charles Coughlin were constantly harping on the need for free silver.  (Energized could mean “make them independently stronger” or “make their views more influential.”)  Third, the 1936 election might have looked like 1896, at least in terms of how the campaign was framed around the money issue.  (I’m not sure how leading Republicans thought about the question–maybe they would not have supported the Court.  I need to figure that out.)

In sum, the most important Supreme Court decision in 1935 was not Schechter Poultry, which is what most experts on this period say, but the Gold Clause Cases.  This is a function of the tendency to put more attention on things that happen rather than on things that are avoided.  The New Deal would have looked more like Bryanism if one Justice had flipped. But that is only part of the story — tomorrow I’ll explain how Carl Weiss delayed the incorporation of the Bill of Rights for a generation.