Author: Gerard Magliocca


The Cross of Gold Speech — The Audio Version

I was doing some research to put together a seminar on constitutional law and came across something surprising.  It turns out that William Jennings Bryan recorded his Cross of Gold Speech on a record in the 1920s.  Obviously, this is not the same as hearing the original version in a hall full of people, but it is neat to hear what he sounded like.


AALS Hiring Meeting

I’ll be there later this week.  Since I’m not the chair of our committee this year, I might actually have some free time.  Send me an email if you’ll be there and want to meet up.

Interviewing faculty candidates for two days is a bear (and the same is true for the candidates, of course).  As Steve McCroskey said in Airplane! — “I picked the wrong week to quit drinking.”


Is the House Of Representatives Unconstitutional?

I want to flag an interesting opinion that was issued by a three-judge district court over the summer in Clemons v. United States Dep’t of Commerce.  Plaintiffs allege that the current allocation of seats in the House of Representatives violates the “one-person, one-vote” principle as between the states. Their data shows that this claim is true, but the issue is whether those cases apply to interstate apportionment.

The three-judge district court rejected this claim in a thorough (and, I thought, well-reasoned) opinion by Judge Southwick.  It’s definitely worth your time, as there is an extensive discussion of the debates in the Constitutional Convention and in the First Congress about how the House should be structured.


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.

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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.”)