Author: Gerard Magliocca

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The 800th Anniversary of Magna Carta

Next month marks the 800th anniversary of Magna Carta.  To celebrate that occasion, we will have three guest posts on April 15th by Renee Lerner (George Washington University Law School), Joyce Malcolm (George Mason University Law School), and Thomas McSweeney (William and Mary Law School).  We look forward to their posts.

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The Future of the Death Penalty

On “Yes Minister,” the civil servants who want to block government initiatives like to say that an idea is fine in principle but not in practice.  We may be approaching that point with the death penalty.  The Court will soon take up another case soon examining whether the new three-drug protocol that states are using to execute people is cruel and unusual punishment.

There’s a broader problem here though.  The companies that make these drugs often do not want them used in this way.  That may be for moral reasons or just for brand reasons–nobody wants their sedative known for killing people.  But if the Justices say that only a certain set of drugs can be constitutionally used for executions, that gives private firms the power to decide if the death penalty can continue.  (A state could buy the drugs through a third-party, but that would probably be shut down over time. )

Of course, states could move towards other methods of execution that do not involve drugs (say, a firing squad), but it is not clear that these could pass constitutional muster.  Thus, we could end up with death penalty abolition in practice without ever seeing an opinion that attacks the sentence head-on.

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Petitions for Rehearing in the Supreme Court

It occurred to me today that someone could write a terrific article on petitions for rehearing in the Supreme Court.  Although rarely granted, these motions do represent a useful contemporary source of criticism of the Court’s judgment in a case.  I’m not sure how often these motions are filed (and they are not easily accessible), but wouldn’t you be curious to see one from Brown v. Board of Education (if there is one), Roe v. Wade, or other Supreme Court classics?

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Enforcing Judgments Only Against Named Parties

Will Baude has a thought-provoking op-ed in today’s New York Times.  In this case, thought-provoking is my euphemism for “I don’t agree.”  He argues that:  “If the administration loses in King, it can announce that it is complying with the Supreme Court’s judgment— but only with respect to the four plaintiffs who brought the suit.”

While Will is correct on the law, I think that this would be a terrible idea.  There are many problems with our Constitution, but “not enough executive discretion” does not strike me as one of them.  I would note also that such an act would be unprecedented.  Yes, Lincoln suggested the same thing with respect to Dred Scott.  But there’s a big gap between that and a Supreme Court decision construing the Affordable Care Act.

Lastly, I’m not sure that Will would have suggested the same course if the Court had ruled against the Administration in NFIB.  Maybe a statutory case is different.  Maybe a tax credit cases is different.  But I’m not convinced.

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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.