Author: Gerard Magliocca


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.


Influence on the Supreme Court

I just finished the new biography of Justice Brennan, and I was very impressed.  My thought was that there was no way a balanced account could be written about such a polarizing figure, but the authors pulled it off. Now the book does suffer from the weakness of the judicial biography genre, which is that judges generally lead dull lives, but it’s a great resource on the Court’s internal politics during his tenure.

Brennan is widely acclaimed as one of the most “influential” Justices.  What do people mean when they say that?  I think that there are several types of influential Justices depending on your time horizon.

1.  The Median Justice.  In any given period, somebody is the swing vote on the Court.  Right now that is Justice Kennedy. The swing Justice is often described as influential, but that title disappears once the median position shifts.  If you look at past examples, nobody much cares about the opinions of this type of Justice in the long run, with the possible exception of Justice Powell.

2.  The Coalition Builder.  This is the one who is the best at convincing the median Justice.  Justice Brennan fits this model. Filling this role requires a willingness to sacrifice logical consistency to accommodate the views of colleagues, and this can weaken the persuasiveness of the opinion for subsequent cases.  That may not matter, though, if the holding is the critical aspect of the decision.  Law professors may criticize aspects of Baker v. Carr or Plyler v. Doe, but those holdings were very important and are now deeply woven into American life.

3.  The Great Writer.  To a significant extent, judicial influence depends on how quotable the opinions are.  An old line from the Second Circuit about Learned Hand and Augustus Hand said “Quote Learned, but go with Gus.”  In other words, Augustus Hand was a better judge, but Learned was the more influential one.  Justice Robert H. Jackson is one example of this type.

4.  The Visionary.  Some Justices are important because they advance an overarching view of the Constitution that is persuasive over time (whether due to their efforts or not).  These folks often start out in dissent and are not interested in persuading their colleagues.  They are instead interested in convincing law students and the wider public.  They are also not so keen on stare decisis or avoiding unnecessary questions, since they want to put forward their theory as often as they can and brush aside contrary authorities.  John Marshall Harlan the elder is an example of this category.

No Justice fits all of these categories.  Indeed,  John Marshall may be the only one who fits more than one, though you could also put Holmes, Brandeis, and Scalia in that set.


Comparative Criminal Law

I want to bring to your attention this new paper by my colleague Shawn Boyne, who is doing some really fascinating research on the German criminal justice system.  Here is the Abstract:

According to German legal scholar, Claus Roxin, German prosecutors are the ‘most objective civil servants’ in the world. Roxin’s assessment of German prosecution practice reflects the conviction of many German legal scholars that prosecutors in Germany’s inquisitorial system function as second judges dedicated to finding the objective “truth.” In this paper I investigate how prosecutors “translate” the normative duty of objectivity enshrined in the German penal code into observable practices on the ground. I examine prosecutorial decision-making in three sexual assault trials. Sexual assault cases pose unique challenges to prosecutors as well as to the definition of objectivity. Because the crime typically occurs in private, the search for truth often focuses on the testimony of the victim and the suspect. In cases in which the physical evidence is inconclusive and the defendant claims that the victim consented, the focus of the fact finder’s inquiry is the victim’s credibility.

Drawing on transcript and interview data, I propose examing three models or “faces” of prosecutorial “objectivity.” Surprisingly, despite the fact that judges structure the presentation of evidence in German trials, prosecutors play a critical role in “interpreting” the facts presented at trial. In each of the cases examined in this paper, the face of objectivity is constructed through a relational process between the presiding judge and the trail prosecutor. Although many legal scholars maintain that penal code sharply circumscribes prosecutorial discretion in major crime cases in Germany, my research demonstrates that a wide variation exists in the way that individual prosecutors interpret their duty to view the evidence objectively.