Author: Gerard Magliocca


Article Five, the Spending Clause, and Federalism

Consider the following hypothetical.  Congress passes a constitutional amendment and sends it to the States for ratification.  The amendment does not get the support of three-fourths of the states as required by Article Five.  Congress responds by passing a law that refuses to appropriate federal funds to any state that has not ratified the amendment in an attempt to coerce them to do so.  One of these holdout states sues claiming that this violates the Spending Clause and the Tenth Amendment.

Would this claim succeed?  The Supreme Court held, in Coleman v. Miller, that the Article Five process is a political question (though not necessarily in all circumstances).  On the other hand, the Spending Clause cases hold that there must be a rational relationship between the conditions placed on federal funds and the funds themselves.  From a federalism perspective, applying pressure to the States would seem like a violation of their sovereign role in making textual changes.  Yet Congress did something similar during Reconstruction when it placed recalcitrant Southern states under military rule until they ratified the 14th Amendment.  How should all of this be reconciled?


Filibuster Reform and the House of Lords

120px-James_Stewart_in_Mr._Smith_Goes_to_Washington_trailer_2_crop.JPGFrustration with the health care debate is reaching a crescendo.  If you turn on C-Span 2 right now, you’ll see the Senate clerk reading an amendment to the bill in its entirety. That will go on all day (it’s 750 pages long) because Senator Tom Coburn (R-OK) refused to give unanimous consent to treating the amendment as read. Filibuster old school style!

Senator Tom Harkin (D-IA) wants to introduce an amendment to the rules that would transform the filibuster from an absolute veto into a suspensive one.  In other words, the refusal to invoke cloture could only delay a final vote on legislation for, say, a month or two in a given Congress.  I’m not keen on this with respect to legislation (though I think it makes sense for the executive calender, as I explained in a prior post).  It seems to me that major legislation such as health care really ought to have more than a bare majority in each house of Congress (whether by norm or by rule).

Nevertheless, there is a parallel with what happened to the House of Lords in Britain.  The Lords used to be equal to the House of Commons.  The Parliament Act of 1911, though, provided that a bill could only be delayed by the Lords for two years within a given Parliament (i.e., the House of Commons could reenact a bill and it would become law without the assent of the Lords if a general election did not intervene).  Later that delaying period was reduced to one year. It is still possible, however, for the Lords to kill a bill at the end of a parliamentary session by doing nothing.  Perhaps the filibuster will evolve in a similar way.


Who is Tiger Woods?

I’m understandably reluctant to post about privacy when your co-blogger is the nation’s leading expert on that topic.  Nevertheless, there is something about the Tiger Woods mess that warrants a comment.

I think that the best observation about privacy comes from Richard Posner, who said (in his book about the Clinton impeachment) that part of what makes information private is its prejudicial quality.  In other words, people think it tells them a lot more about someone than it really does.  And as a result, they tend to focus on that to the exclusion of other, perhaps more relevant, facts.

Sex is an obvious example.  The theory of why knowing about that would tell you something special about the inner life of another is straightforward enough.  My experience, though, tells me that there is almost no correlation between someone’s sex life and the rest of their personality.  Of course, in Tiger’s case we don’t really know much about his personality, so it’s hard to make that judgment about him.  That won’t stop people from trying though.


Assumption of Risk and Football

120px-Wilson_American_footballThe NCAA headquarters is across the street from my school.  In the lobby, you will find a life-size sculpture of the “flying wedge,” which was a popular football play at the turn of the 20th century.  Basically, all of the offensive linemen linked arms and the running back just followed behind them.  It worked really well, except that lots of linebackers ended up with broken necks after being hit by the full force of many men. Indeed, there were so many fatalities caused by the flying wedge that college football was on the verge of being abolished.  That’s why the NCAA was formed.  Teddy Roosevelt, convinced that games like football were necessary to inspire manly virtues, got a group of leading college presidents (including Woodrow Wilson at Princeton) together and urged them to stave off these calls by forming an athletic association that would promulgate limited safety rules (such as banning the flying wedge).

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Canary in the Coal Mine

DownloadedFileAs the health care debate drags on in the Senate, it occurs to me that the Supreme Court’s Commerce Clause for this term, United States v. Comstock, is becoming more and more important.  Why?  Because health care reform, if enacted in something like its present form, will almost certainly face a constitutional challenge claiming that the individual mandate exceeds Congress’ commerce power.  Since this issue is already being discussed in op-eds and on blogs, at least some Justices must be aware that the question could be before them in the next few years.

Comstock may provide clues about the Court’s thinking on this, both in oral argument and in the opinions that follow.  Many Justices try to anticipate future controversies and use relatively innocuous opinions to plant seeds that will support a future line or argument that they want to make.  Thus, we need to pay close attention to what gets said in Comstock, not just on the holding related to civil commitment.


Interpretive Fictions in Constitutional Law

One issue that I’ve been thinking about lately — in part because of a presentation that I gave at a conference in October — is the use of legal fictions in constitutional interpretation.  By a fiction, I mean something that everybody knows is not true but says anyway for some jurisprudential purpose.  Many famous scholars (e.g., Bentham, Maine, and Fuller) have talked about the use and abuse of fictions at common law, but there is comparatively little discussion of those issues in constitutional law.  Let’s consider some candidates:

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Fun Cases That You Don’t Know

Since it’s that time of year (by which I mean exam time), I thought I’d write a recurring series of posts on neat cases that I use in my courses but are relatively unknown.  These will mostly be Admiralty cases, as I doubt that there are any “fun” constitutional or IP decisions that are hidden in plain sight.

Let’s start with Koistinen v. American Export Lines, 83 N.Y.S.2d 297 (1948).  Plaintiff was a seaman who was on shore leave in Yugoslavia.  At a bar, he “met a woman whose blandishments, prevailing over his better sense, lured him to her room for purposes not entirely platonic; while there ‘consideration like an angel came and whipped the offending Adam out of him'; the woman scorned was unappeased by his contrition and vociferously remonstrated unless her unregarded charms were requited by an accretion of ‘dinner,’ . . . the court erroneously interpreted the word as showing that the woman had a carnivorous frenzy which could only be soothed by the succulent sirloin provided at the plaintiff’s expense; but it was explained to denote a pecuniary not a gastronomic dun”

I could go on quoting this opinion all day, but to move things along the seaman (having changed his mind about going through with this assignation) was locked in the room by the woman and confronted by her pimp.  The sailor leapt out the window to escape, fell about eight feet, and broke his leg.  The issue was whether the ship was required to pay maintenance and cure (medical expenses and lost wages) related to his injuries.   The Court said yes, on the grounds that shore-leave injuries (with one or two exceptions) are considered work-related in maritime law.  After all, stranding a sailor in a foreign port with no medical care would be contrary to the remedial goals of maintenance and cure.


Qualified Immunity Reform

Last month I wrote about how the current state of qualified immunity doctrine troubled me for a reason that I could not articulate.  After working through some of the cases on damage actions for official misconduct, I think I know what the problem is.

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New Books by My Colleagues

I’m pleased to announce that two of my friends at IU–Indianapolis have new books coming out.  One is the The Political Centrist by John Hill, which is being published by Vanderbilt University Press.  (You can find a description of the book here.)  The other is Persistent Inequality:  Contemporary Realities in the Education of Undocumented Latina(o) Students by Maria Lopez (with G. Lopez) and is being published by Routledge Education.  (That link is here.)



Impeachment in Nebraska

The other day a friend asked me how impeachments work in Nebraska given that it has a unicameral legislature.  I was embarrassed that I didn’t know.  After all, I am an Admiral in the Nebraska Navy.  (For more on that office, see here.)  It turns out that a majority of the Legislature is required to impeach and two-thirds are required to convict after a full trial in which members must find by clear and convincing evidence that an impeachable offense occurred.  The use of a specific burden of proof is an interesting twist on impeachment that is not in the Federal Constitution.

More broadly, this example points up the fact that constitutional scholars don’t pay enough attention to state constitutions.  There are terrific comparative resources there that, at least in some instances, are probably more instructive than doing comparisons with foreign countries.  (The California Constitution represents the leading dysfunctional case study.)

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