Author: Gerard Magliocca

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James Madison and the Bill of Rights

97px-James_MadisonAs part of my research for my next book, I’ve been trying to see if Madison ever called what was ratified in 1791 the Bill of Rights or a bill of rights.  Thus far, I have come up empty.

One possible example was in an article that Madison wrote for The National Gazette in December 1791.  In this piece, entitled ‘Public Opinion,” he stated: “[A]s government is influenced by opinion, it must be so, by whatever influences opinion.  This decides the question concerning a Constitutional Declaration of Rights, which requires an influence on government, by becoming a part of the public opinion.”  This article came out four days after the first set of amendments was ratified.  Thus, in context maybe this passage was referring to what was just ratified as a “Declaration of Rights.”  If so, though, this was a pretty oblique way of making the point.

I’ve also gone through Madison’s Report on the Virginia Resolution, which contained a detailed analysis of the Alien and Sedition Acts.  In that Report, Madison refers only to “the amendments” and quotes from the First and Tenth Amendments.  He never calls the amendments a bill of rights or the bill of rights.

There are no references to the Bill of Rights in Madison’s presidential papers. We’ll see what I find when I go through his papers in retirement.

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Help! Help! I’m Being Coerced!

I was curious to hear thoughts on the following possible resolutions of King v. Burwell.  Suppose the Court holds that the portion of the Act at issue is unambiguous and that federal subsidies may not go to people in states without exchanges.  They also say that this provision raises serious constitutional questions, but that no constitutional claim is before them, so they will not address that point.  At that point, some state will presumably sue and raise the constitutional claim.  Let’s say that claim is successful when it gets back to the Supreme Court.  Would the relief be that subsidies must go all states, or would the subsidies just be annulled entirely until Congress writes a new subsidies provision that is constitutional?

This is not an entirely academic question.  Suppose four Justices read the statute in the Government’s favor and four go the other way in King.  Justice Kennedy, meanwhile, reads the statute as unambiguous and unconstitutional.  His opinion would then control, and that would mean, I guess, that all subsidies would be unlawful until the Act is amended.  Right?

P.S.  I couldn’t resist writing a post with this title.

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Population Control in Griswold v. Connecticut

I was reading Petitioner’s Brief in Griswold, and was struck by this passage:

Population expansion poses a momentous problem for this country and the world today. The issue must be ranked as equal in importance to the questions of disarmament and peace, automation, poverty and civil rights. Indeed population control is a part, and a significant part, of each of these burning problems. We will not attempt to present in this brief the facts pertaining to the “population explosion.” It is now fully apparent that the public welfare of the world, this nation, and all its constituent parts, requires immediate consideration of measures to plan and limit population growth. And any such program must obviously rely upon the use of scientific methods for preventing conception.

The Federal Government has recognized the problem and is actively seeking a solution. In December of 1962 United States policy was officially stated by Richard H. Gardner, Deputy Assistant Secretary of State for International Organization Affairs, speaking to the United Nations:

‘In the opinion of my Government progress toward (the) high aims of the United Nations Charter cannot be measured merely by increases in gross national product. The object of economic development is the welfare and dignity of the individual human beings. If the condition of the individual, and not gross statistics, is to be the measure of our progress, then it is absolutely essential that we be concerned with population trends . . . . So long as we are concerned with the quality of life we have no choice but to be concerned with the quantity of life.’

‘We believe these statements are true not just for some but for all nations . . . .

‘Within the United States our local, state and federal governments are all devoting attention to population trends as part of their planning for the improvement of individual welfare.’

President Kennedy supported these developments. Thus in a speech on June 5, 1963, calling for solution of the problem of hunger in the world, he made clear the interest of this country when he said, ‘Population increases have become a matter of serious concern.’

And President Johnson, in a significant and much-noted passage in his State of the Union Address this year, emphasized that additional action was necessary and would be taken:

‘I will seek new ways to use our knowledge to help deal with the explosion in world population and the growing scarcity of world resources.’

We are confronted then with an acute world-wide problem that is pressing for immediate solution. That solution must involve, as a major element, the voluntary use of contraceptive devices to limit the number of children born. Viewed in this context, in the light of world opinion and world needs, the contrary judgment of the Connecticut statutes, left-overs from a by-gone era, can have little standing.

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The Third Amendment and the Civil War

Here’s a thought that occurred to me yesterday.  When the Army of Northern Virginia invaded the North in 1862 and 1863, there must have been situations where Union officers quartered in private homes.  (Maybe only generals did this, but still.)  Was this always the product of homeowner consent?  If not, would this have violated the Third Amendment?  The Amendment says that troops may be quartered in homes during wartime “in a manner to be prescribed by law.”  As far as I know, though, Congress never passed a statute during the Civil War governing this sort of situation.

I suppose you could say two things about this.  One is that “quartering” does not refer to a soldier staying in your house for one or two nights during a campaign.  Rather, it’s a more permanent stationing of troops.  The other is that consent was always given, though in practice consent may have been meaningless when armed troops showed up at your house and “asked” if they could stay with you.  Thoughts?

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The Purposes of a Bill of Rights

As part of my research for my next book (and perhaps for another paper), I’m thinking through what bills of rights do and why we have them.  The best discussion of this subject was in an article by David Strauss written in 1992, where he identified three ways of thinking about a bill of rights:

1.  A Bill of Rights is Just a Code:  A bill of rights simply reflects whatever a given society or jurisdiction deems important.

2.  A Bill of Rights Is Only About Fundamental Rights:  You can understand a bill of rights as something that only addresses rights that no democratic society can do without.

3.  A Bill of Rights Is About Political Failure:  You need a bill of of rights to deal only with rights that elected institutions are likely to invade or abuse.

Depending on which of these three views you take, different provisions in bills of rights (and bills of rights more generally) look different.  The first theory describes many state bills of rights, which include all sorts of things that look pretty ordinary.  The second theory would reject the inclusion of many things that are in the Bill of Rights, such as the right to a grand jury indictment or a jury trial.  The third would posit that the Third Amendment is the sort of thing that need not be in a bill of rights since no elected legislature would quarter troops in homes.  And so on.

Another way of examining this question asks what role bills of rights have served historically (let’s just focus on the United States in this post).  For instance,

1.  Justifying Revolution:  The first state bills of rights, especially the Virginia Declaration of Rights, were all revolutionary statements justifying independence.  This is why they contain many broad statements on natural rights and read like the Declaration of Independence.

2.  Defending Federalism:  This, of course, was the purpose of the first set of amendments in 1791.  The Anti-Federalists rallied around a bill of rights as a way to limit the new federal government.

3.  Limiting the Police Power:  This was the purpose of state of bills of rights after the Revolution.

4.  Limiting Federalism:  This was the purpose of John Bingham and those who called the first set of amendments a bill of rights during Reconstruction.  The Bill of Rights trumps states’-rights.

5.  Justifying Colonialism:  As I explained in a prior post, doubts about whether America should govern colonies acquired during the Spanish-American War were soothed by giving those colonies bills of rights.

6.  Justifying Judicial Review:  This was a purpose of the Bill of Rights after the New Deal.  People are more likely to accept judicial review framed as an application of the Bill of Rights.

I’m working on one or two other angles that I may post on later.

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A Negative Right of Publicity?

I was batting around the following issue with a student today.  Suppose that a celebrity makes a positive statement about a product or is seen publicly using that product.  The product manufacturer, horrified by any association with this person, issues a statement saying that they are not associated with the celebrity.

Would the celebrity have a right of publicity claim under these circumstances?  One could argue that the corporate statement is an unauthorized use of the celebrity’s name and image for commercial gain.  In this example, though, you would have a negative or reverse endorsement of the brand.  The firm would say that their brand is defined in part by not being somebody.

Presumably, a firm has some First Amendment interest (and a Lanham Act interest) in disassociating itself from unwanted people or actions.  What limits, if any, are there on these interests?

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Justice Souter’s Papers

To follow up on yesterday’s post, media accounts from a few years ago state that Justice Souter donated his Supreme Court papers to the New Hampshire Historical Society with the condition that they not be opened  until 2059.  This restriction strikes me as hard to justify, though of course Justice Souter could still change his mind and open them up sooner.  I will be writing to Justice Souter’s chambers to confirm.

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The Papers of the Justices

One frustration for legal historians and Supreme Court scholars is that there is no uniform policy on the preservation and availability of the Justices’ papers.  Unlike presidents, Justices can destroy their papers, make them completely unavailable, give them to anyone, or impose all sorts of crazy conditions on access.  I would prefer that a federal statute be enacted to fix this problem, but in the meantime it would be useful to know what each Justice (retired and sitting) plans to do with their papers.

Accordingly, I’m going to write each Justice’s chambers to ask about his or her plans.  Some will say that they do not know yet, but the scholarly community would benefit from knowing about the ones who have decided.  I’ll let you know what I find out.

UPDATE:  For example, Chief Justice Rehnquist’s papers on his Supreme Court tenure are closed until every member of the Court that served with him dies.  That’s a LONG time.

UPDATE #2:  An alert reader points out that Chief Justice Rehnquist’s papers actually open after every member of the Court that served with him in a given year dies.  For example, his Court papers from 1972-1975 are open (they are held by the Hoover Institution at Stanford).  When Justice Stevens dies, the files from 1975-1981 will become available.  (Presumably that will include all of Chief Justice Roberts’ papers as a law clerk.)

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Is the Logan Act Constitutional?

Now that the argument in King v. Burwell is over (looks like the Government will win, though three years ago it looked like the government would lose and then . . .), let us return to other subjects.

In 1799, Congress passed the Logan Act, which states, in part:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

Nobody has ever been convicted under this statute, and I have to wonder whether it is constitutional.  Why don’t I have a First Amendment right to carry on correspondence with a foreign government or official to influence their policies in connection with ours?  If you construed this statute narrowly (say, to apply to giving the enemy information in wartime), that’s one thing, but the Logan Act covers much more.  The fact that this was passed by the same Congress that gave us the Alien and Sedition Acts (and was meant to bar Jeffersonians from talking to France), combined with the total lack of convictions over more than 200 years,  makes the case for constitutionality look even weaker.