Author: Gerard Magliocca


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.


Legal Fictions

I love the following from Justice Robert H. Jackson, who was probably the greatest writer in the Court’s history (though this quote comes from his book on The Struggle for Judicial Supremacy)

“Fictions are often the hostages that the forces of movement give to the forces of retreat.”


Conference on Property Rights

My colleague at IU–Indy, Dan Cole, is organizing a terrific conference on the “Evolution of Property Rights Related to Land and Natural Resources” with Elinor Ostrom, who won the Nobel Prize in Economics last year.  A description of the event, which will be held in Cambridge, MA on September 20-21, is here.


The Private Action Requirement

I’m going to break my “don’t-post-twice-in-one-day” rule because something is bugging me.  On Monday I suggested that one way to assess the arguments being made against the constitutionality of the individual health insurance mandate was to look at constitutional text and doctrine for other places where a distinction is made between action and inaction.  The comments to that post, rightly I think, said that this basically won’t get us anywhere.

Another idea occurs to me though.  Folks like Randy Barnett rely heavily on the idea that congressional regulation of inactivity (or commercial coercion) is unprecedented under the Commerce and Taxing Clauses.  But isn’t it is equally unprecedented to establish a “private action” limitation on congressional authority pursuant to those provisions.  Where does that doctrine come from?  There’s no case law to support the concept, for example.  Thus, each side in the litigation wants courts to do something new–either by upholding or invalidating the individual mandate.  It’s a jurisprudential wash.

The closest analogy is the state action requirement, which developed after Reconstruction and is still controversial.  Some people think it was a proper interpretation of the Fourteenth Amendment.  Others think that it was a distortion designed to protect federalism at the expense of the text.  Now people might say that, even if it was a distortion, it should be retained due to stare decisis concerns.  But extending the doctrine into the private realm (again to protect federalism) is something else. If you think that the state action doctrine is correct on the merits, then I think the argument for a related limitation in the Commerce Clause makes more sense.  If you don’t believe that the state action doctrine is sound, then you should have the same skepticism for a private action doctrine.


The Forgotten New Deal — Populism

What is the connection between the New Deal and the Populist movement led by William Jennings Bryan? The standard answer is–not much.  Historians like Richard Hofstadter liked to emphasize the influence of the Progressive Era on Franklin D. Roosevelt, and it’s hard to find two political leaders with more different personalities or agendas than FDR and Bryan.

On the other hand, there should be a connection.  Every constitutional generation is influenced by its predecessor.  The jargon term I use for this is the “feedback effect.”  For instance, abolitionists developed their doctrines in reaction to Jacksonian Democracy.  And conservatives developed their jurisprudential outlook in response to what happened during the 1960s.  So why isn’t the same true for the New Deal?  (Yes, the Populists lost, but that should just speak to the strength of the link, not its existence.)

The revisionist answer is that the New Deal came very close to becoming a rerun of Populism but for two critical events — the decision in the Gold Clause Cases and the assassination of Huey Long.  If either of these had gone the other way, then FDR would have taken a much more Populist approach.  Accordingly, it turns out that 1935 was just as important, if not more so, to the evolution of New Deal Constitutionalism than 1937.  I’ll talk about that next week.


The Forgotten New Deal — What If?

Yesterday I wrote that my next project will be about the New Deal.  This post provides an overview of that research and explains how it relates to my first two books.

The theme of my 2007 book on Jacksonian Democracy is that there is a “generational cycle” in constitutional law.  My forthcoming book on William Jennings Bryan locates the Populists of the 1890s within that cycle and focuses on the idea of failure, since their defeat led to a transformation in doctrine that was as profound, if not more so, than the success of the Civil Rights Movement.

The New Deal was another turning point in the cycle, but here I want to contemplate the contingency of constitutional outcomes. It’s one thing to say that there is a pattern in our politics that tells you when significant legal change is likely to occur.  What that change will be, however, is highly dependent on personalities and luck.  The best example comes from the Jackson book, which explains why William Henry Harrison’s death in 1841 saved M’Culloch v Maryland from being overruled. Not all constitutional generations have these moments (though think about how different the 1980s would have been if John Hinckley had killed President Reagan), but the New Deal had more of them than any other.  Put another way, this is a “What If?” book that will examine how close the New Deal came to going in different directions.

Let me set up the subsequent posts by listing several questions:

1.  What was the relationship between the Populist movement and the New Deal?

2.  What would have happened if the Gold Clause Cases went the other way in 1935?

3.  How did Huey Long’s assassination change constitutional doctrine in 1935?

4.  Suppose, as was original intention, Justice Van DeVanter had retired in 1933?

5.  What if the assassination attempt against FDR had succeeded and John Nance Garner had become President?

6.  How would the Court-packing plan have looked different if the Child Labor Amendment had been ratified?

7.  Which year was more important for the New Deal–1935 or 1937?

More to come . . .