Author: Gerard Magliocca


Why Supreme Court Oral Arguments Will Never Be Televised

The recent controversy over Justice’s Scalia’s comments during the oral argument on affirmative action explain why the Justices will never agree to open arguments for television.  (I’m not saying that’s a good thing–I’m saying this is just true.)

Justice Scalia was only summarizing what the amicus brief said about mismatch theory.  Now did he do this in the most artful or sensitive way?  Definitely not. But it’s not as if he was writing an opinion–he was asking a question.  The subsequent criticism of him is, in my view, unfair.

Of course, the Justices are no different from politicians in thinking that the media sometimes distorts their views.  The difference is that they are in a position to block television in their Court, and they will continue to do so.


Guns and Abortion

I guess I should say something about the most recent discussion on guns in the United States. My take is that the answer to the problem of gun violence rests on changing culture rather than law.

The right to own a gun for self-defense and the right to have an abortion are both constitutional freedoms that many people reject as too costly (in other words, they kill lots of people). In both instances, though, if you ended the rights in question there would be plenty of lawbreaking that would be even more costly. So what is the upshot?  You can have regulations that marginally restrict the activity, but they are largely symbolic (say, banning partial birth abortion or things that are characterized as assault weapons).

Another solution involves just persuading people that the act in question is wrong or unnecessary.  This is much harder and far less satisfying because it concedes that the activity will continue, but in terms of reducing the harm it’s probably the more effective answer.

I wonder whether gun control proponents will start moving in the direction of direct protests (say, outside their local gun shop) the way anti-abortion activists target clinics.


Richard Nixon’s Law Review Note

240px-Elvis-nixonThough I was exposed to this in law school, many of you may not know that Richard Nixon wrote a Note while he was a law student at Duke for Law and Contemporary Problems. The paper is entitled “Changing Rules of Liability in Automobile Accident Litigation,” and provides a solid analysis of the tort doctrines of the day.  An interesting curiosity.


Delegating the Dark Side of the Force

With Cass Sunstein working on a book about Star Wars and the new movie soon to drop, I thought I’d take the bait and write about the constitution of the First Galactic Empire.

If we use constitution in the British sense to describe the way in which a government works, then the most interesting feature of the Empire is its decentralized structure and breathtaking delegations of power. This is established early on in Episode Four, following the dissolution of the  Senate and (presumably) the end of Jar Jar Binks’s career.

In response to the dissolution, one of the Death Star officers asks, “How will the Emperor maintain control without the bureaucracy?” Grand Moff Tarkin replies, “The regional governors now have direct control over their territories.”  (I would think that governors would also have a bureaucracy, but anyway.). The power of these imperial governors was nothing, though, compared to the authority delegated to the Grand Moff himself, who could destroy entire planets without the need for consultation.  No wonder the commander of the Second Death Star is shocked in Episode Six when he learns that the Emperor conducting an inspection (“The Emperor is coming here?”)  After all, he never does anything in person.

Yet there were costs to an administrative design that placed so much trust in subordinates.  First, Darth Vader was free to hand the plans to the Death Star to the rebels with disastrous consequences.  Second, the commander chosen to lead an entire legion of the Empire’s best troops was incompetent and defeated by a bunch of teddy bears.  Third, the Empire only narrowly avoided a succession crisis, as it was not clear whether Vader or the Grand Moff was second-in-command (arguably Tarkin ordered Vader to release a choke-hold on his colleague and Vader complied (“As you wish.”).

Of course, centralized evil empires also have flaws.  See Sauron v. Frodo, 56 M.E. 875 (3rd Age, Mordor).



The McReynolds/Brandeis Picture

I want to draw your attention to a new article in The Journal of Supreme Court History (no link available right now) that debunks the famous story that Justice McReynolds refused to sit next to Justice Brandeis for a Court portrait in 1924 and thus there was no official photo taken in that year.

While the story sounds true because Justice McReynolds was a weird person and an anti-Semite, there is nothing to this particular claim.

  1. The Supreme Court did not sit every year for an annual photo in those days.
  2. Justices McReynolds and Brandeis are pictured together at other functions in the 1920s.
  3. The claim that McReynolds refused to sit next to Brandeis came from a book written in the 1960s. The scholar in question relied on a letter written by McReynolds to Chief Justice Taft, but the letter in question says nothing about Brandeis.

A New Book on The First Congress

In prior posts, I’ve commented that we could use a good book on the First Congress, which played a crucial role in shaping the Constitution and our basic institutions. Now I’ve learned that a book is coming out in February on this topic by Fergus Bordewich, which I’ve pre-ordered and wanted to flag for you.


The Father of the Constitution?

203px-JamesMadisonA conclusion that is hard to avoid after reading Mary Bilder’s book on James Madison’s Notes on the Constitutional Constitution is that he does not really deserve the nickname “Father of the Constitution.” Much of what he wanted in the text was not adopted, and much of what was put into the document was the result of a collective effort that Madison (to some extent) obscured in the Notes.

Why, then, does Madison have this nickname?  My hunch, though I need to look into this further, is that when he ran for President in 1808 this slogan was coined for his campaign.  Something similar happened with Jefferson, as people enlarged his role in producing the Declaration of Independence when he ran for President to make it seem as if he wrote the whole thing himself.


Redefining the Bill of Rights

I am now writing the next book in earnest (midway though Chapter One and counting).  Hurray!

One puzzle about the Bill of Rights I’ve been thinking about lately is this:  If people think that the phrase refers to the most important parts of the Federal Constitution that protect individuals, then why wouldn’t people have argued that things other than what was in the first set of amendments were included?  We could argue about what should be included, but possible candidates include the Thirteenth Amendment, parts of the Fourteenth Amendment, and so on.

It turns out, upon close examination, that these sorts of arguments were made from time to time, though sometimes indirectly.  Take Justice Hugo Black, for example, who made this argument in his 1963 Madison Lecture on the Bill of Rights:

I prefer to think of our Bill of Rights as including all provisions of the original Constitution and Amendments that protect individual liberty by barring government from acting in a particular area or from acting except under certain prescribed procedures. I have in mind such clauses in the body of the Constitution itself as those which safeguard the right of habeas corpus, forbid bills of attainder and ex post facto laws, guarantee trial by jury, and strictly define treason and limit the way it can be tried and punished.  I would certainly add to this list the last constitutional prohibition in Article Six that ‘no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.’

State and imperial (Puerto Rico, the Philippines) bills of rights often included the Thirteenth Amendment, and Learned Hand once said that the Due Process Clause of the Fourteenth Amendment was part of the Bill of Rights.  Anyway, more on this I as I roll along, as I’m keen to see (especially at the state level) how the meaning of a bill of rights changed over time.



The 12th Amendment

While we’re on the subject of the Presidency and Vice Presidency, here’s another thought that recently occurred to me.  We commonly say that presidential electors are free to vote their conscience.  It is only a custom, though a well-established one, that they instead vote as state law dictates (with the occasional quirky exception).

But what about this thought.  The Twelfth Amendment substantially changed the Electoral College.  By 1804 (when the amendment was ratified) it was already clearly understood that electors would not vote their conscience and would vote as state law dictated.  Could you say, therefore, that the Twelfth Amendment actually removed the discretion of electors and that they are acting unconstitutionally if they vote in a non-ministerial way?


Vice Presidential Disability

There are many criticisms that can be lodged against the Twenty-Fifth Amendment, and one of them is that there is no process for removing a disabled vice-president short of impeachment.  If you think about it, this presents a serious problem.

Suppose the VP suffers a stroke.  He or she cannot be fired by the President, unlike other significant executive officials. We can do without a functioning Vice President, but what if the President dies or resigns?  Presumably the disabled VP would become President and then would be sidelined under the 25th Amendment.  Then the Speaker of the House would become President (possibly from the other party).  That Acting President could nominate his or her own Vice President (otherwise the next person in the succession would be the President Pro Tempore of the Senate), which in turn could mean that the disabled President (if he or she recovered) could wind up with a new VP not of his or her own choosing.

You could solve this by impeaching and removing a disabled VP without naming a replacement.  Then if that VP recovered, the President could name the old VP as the new one.  But would being ill constitute a “high crime and misdemeanor?”  Some members of Congress might be reluctant to set a precedent like that.

Sooner or later, the idiocy of the Presidential Succession Statute, along with the flaws are the Twenty-Fifth Amendment, are going to cause a constitutional crisis.