Author: Gerard Magliocca

5

LBJ Discusses the Supreme Court

80px-Lbj2I’ve posted before about Lyndon Johnson’s blunt tactics with respect to the Supreme Court (talking Justice Arthur Goldberg into leaving to become UN Ambassador, making Ramsey Clark AG to get Tom Clark off the Court, etc.)  In 1968, Chief Justice Warren attempted to retire, and I’ve recently come across the tapes on which LBJ discussed the vacancy and the subsequent unsuccessful nomination of Justice Fortas as his successor.  (LBJ, like Richard Nixon, also had White House tapes.)  If you’re interested, here is the link.  You get to hear LBJ . . . well . . . being LBJ.

 

10

Netanyahu’s Address to a Joint Session is Not Unconstitutional

There have been some thoughtful posts recently (by Michael Ramsey and David Bernstein) arguing that PM Netanyahu’s upcoming speech to a Joint Session of Congress without presidential approval violates the Executive Branch’s exclusive prerogative “to receive ambassadors” and conduct foreign policy.  I respectfully dissent.

Prime Minister Netanyahu cannot enter the United States unless the State Department gives him a visa.  Thus, the President has the means of preventing this speech.  If he does not, then I submit that he is giving a constitutionally adequate sanction.  A more difficult case would arise if Congress issues the invitation after the foreign leader is here or if it invited a foreign ambassador who is based here.  In that case, I think the standard would be whether Congress is considering legislation related to the speech.  Here a new bill imposing sanctions on Iran is under active consideration, and if Congress wants to hear from Netanyahu or anybody else with something useful to say about that, I think that they can.  This is true even if the real purpose of inviting the leader or ambassador is to embarrass the President.

Now is this invitation is a good idea?  Ask a foreign policy expert.

 

15

A Word Missing From the Constitution

The answer is “Governor.”  The Constitution never refers to the Governor of a State.  The phrases used instead are “executive authority” or “executive officer.”  I’m not sure why.  One possible answer is that at least one state in 1787 did not have a Governor, but instead relied on some form of collective executive.  (I still need to research that.)

This textual point sheds some light on the Supreme Court’s upcoming examination of what the word “Legislature” means in the Arizona redistricting case.  The Constitution does refer specifically to the Legislature (rather than to “the Legislature authority”) in many places, which suggests that the Legislature itself must play a significant role in the tasks that are delegated to it by the text.  The Arizona Constitution does not do that with respect to redistricting, which is why I’m sticking with my view (after initially concluding otherwise) that the constitutional challenge by the State Legislature should succeed.

UPDATE:  Vik Amar has a new column arguing that an Act of Congress authorizes what the Arizona Constitution does.  It’s an interesting take that might lead me to change my mind again.  After all, Article 1, Section 4 gives Congress given broad authority over districting if it chooses to exercise that power.

13

Involuntary Divorce

Here’s a question that I have about the upcoming same-sex marriage argument.  Suppose you are a same-sex couple that lives in one of the circuits that held that there is a constitutional right to same sex marriage and where the cert. petition was denied last Fall.  In other words, the judgment is final.  Your home state did not legalize same-sex marriage, but (relying on the circuit case), you got married.  In June, the Supreme Court holds that there is no right to same-sex marriage (unlikely, but humor me).

Would that decision means that you are legally divorced?  And if that is true, could one of the parties avail themselves of the state’s divorce law in, say, two years if the relationship breaks down?  How would that work?

15

The Rise and Fall of Presidential Gerrymandering

A great deal of attention is given to partisan gerrymandering of congressional and state legislative districts.  What receives less attention, though, is the fact that there is a strong norm against gerrymandering within the Electoral College.  A state that usually votes one way in presidential elections could be taken over by the other party and change its method of allocating electoral votes.  For instance, suppose Republicans won the Governorship and Legislature of New York, a state they have no chance of winning at the presidential level.  (It hasn’t happened since 1984.)  They could move from a winner-take-all system to a proportional one, or one based on congressional districts, or something else.  This would net the GOP many electoral votes (at least 10) and could turn the national election in a close race.

This is not a hypothetical, as I recently learned.  In 1888, Benjamin Harrison was elected President even though he lost the popular vote to President Cleveland.  One of the states Harrison carried was Michigan.  In 1890, Democrats won the control of the State Legislature and Governor’s Mansion and did exactly what I described.  Republicans challenged this action and the Supreme Court held, in McPherson v. Blacker, that Michigan had not violated the Constitution.

In his 1891 Annual Message (before the Supreme Court ruled) President Harrison denounced Michigan’s act at length.  He was, of course, not a neutral party, as he was running for reelection.  This is the relevant passage:

The method of appointment by the States of electors of President and Vice-President has recently attracted renewed interest by reason of a departure by the State of Michigan from the method which had become uniform in all the States. Prior to 1832 various methods had been used by the different States, and even by the same State. In some the choice was made by the legislature; in others electors were chosen by districts, but more generally by the voters of the whole State upon a general ticket. The movement toward the adoption of the last-named method had an early beginning and went steadily forward among the States until in 1832 there remained but a single State (South Carolina) that had not adopted it. That State until the Civil War continued to choose its electors by a vote of the legislature, but after the war changed its method and conformed to the practice of the other States. For nearly sixty years all the States save one have appointed their electors by a popular vote upon a general ticket, and for nearly thirty years this method was universal.

After a full test of other methods, without important division or dissent in any State and without any purpose of party advantage, as we must believe, but solely upon the considerations that uniformity was desirable and that a general election in territorial divisions not subject to change was most consistent with the popular character of our institutions, best preserved the equality of the voters, and perfectly removed the choice of President from the baneful influence of the “gerrymander,” the practice of all the States was brought into harmony. That this concurrence should now be broken is, I think, an unfortunate and even a threatening episode, and one that may well suggest whether the States that still give their approval to the old and prevailing method ought not to secure by a constitutional amendment a practice which has had the approval of all. The recent Michigan legislation provides for choosing what are popularly known as the Congressional electors for President by Congressional districts and the two Senatorial electors by districts created for that purpose. This legislation was, of course, accompanied by a new Congressional apportionment, and the two statutes bring the electoral vote of the State under the influence of the “gerrymander.”

These gerrymanders for Congressional purposes are in most cases buttressed by a gerrymander of the legislative districts, thus making it impossible for a majority of the legal voters of the State to correct the apportionment and equalize the Congressional districts. A minority rule is established that only a political convulsion can overthrow. I have recently been advised that in one county of a certain State three districts for the election of members of the legislature are constituted as follows: One has 65,000 population, one 15,000, and one 10,000, while in another county detached, noncontiguous sections have been united to make a legislative district. These methods have already found effective application to the choice of Senators and Representatives in Congress, and now an evil start has been made in the direction of applying them to the choice by the States of electors of President and Vice-President. If this is accomplished, we shall then have the three great departments of the Government in the grasp of the “gerrymander,” the legislative and executive directly and the judiciary indirectly through the power of appointment.

An election implies a body of electors having prescribed qualifications, each one of whom has an equal value and influence in determining the result. So when the Constitution provides that “each State shall appoint” (elect), “in such manner as the legislature thereof may direct, a number of electors,” etc., an unrestricted power was not given to the legislatures in the selection of the methods to be used. “A republican form of government” is guaranteed by the Constitution to each State, and the power given by the same instrument to the legislatures of the States to prescribe methods for the choice by the State of electors must be exercised under that limitation. The essential features of such a government are the right of the people to choose their own officers and the nearest practicable equality of value in the suffrages given in determining that choice.

It will not be claimed that the power given to the legislature would support a law providing that the persons receiving the smallest vote should be the electors or a law that all the electors should be chosen by the voters of a single Congressional district. The State is to choose, and finder the pretense of regulating methods the legislature can neither vest the right of choice elsewhere nor adopt methods not conformable to republican institutions. It is not my purpose here to discuss the question whether a choice by the legislature or by the voters of equal single districts is a choice by the State, but only to recommend such regulation of this matter by constitutional amendment as will secure uniformity and prevent that disgraceful partisan jugglery to which such a liberty of choice, if it exists, offers a temptation.

Nothing just now is more important than to provide every guaranty for the absolutely fair and free choice by an equal suffrage within the respective States of all the officers of the National Government, whether that suffrage is applied directly, as in the choice of members of the House of Representatives, or indirectly, as in the choice of Senators and electors of President. Respect for public officers and obedience to law will not cease to be the characteristics of our people until our elections cease to declare the will of majorities fairly ascertained without fraud, suppression, or gerrymander. If I were called upon to declare wherein our chief national danger lies, I should say without hesitation in the overthrow of majority control by the suppression or perversion of the popular suffrage. That there is a real danger here all must agree; but the energies of those who see it have been chiefly expended in trying to fix responsibility upon the opposite party rather than in efforts to make such practices impossible by either party.

Is it not possible now to adjourn that interminable and inconclusive debate while we take by consent one step in the direction of reform by eliminating the gerrymander, which has been denounced by all parties as an influence in the selection of electors of President and members of Congress? All the States have, acting freely and separately, determined that the choice of electors by a general ticket is the wisest and safest method, and it would seem there could be no objection to a constitutional amendment making that method permanent. If a legislature chosen in one year upon purely local questions should, pending a Presidential contest, meet, rescind the law for a choice upon a general ticket, and provide for the choice of electors by the legislature, and this trick should determine the result, it is not too much to say that the public peace might be seriously and widely endangered.

In 1892, President Harrison won Michigan again but 5 of its 14 electoral votes went to Grover Cleveland.  (Cleveland won the election by a lot more than that.)  Republican regained control of the state prior to the 1896 election, and returned Michigan to a winner-take-all method.  No state has engaged in this sort of gamesmanship since then, though from time there have been threats to do so.

12

Martin Luther King and Copyright

92px-Martin_Luther_King_Jr_with_medallion_NYWTSThe new movie about Selma is generating controversy for its portrayal of Lyndon Johnson, but the copyright issues surrounding the movie also point to Martin Luther King Jr’s unique role in our political life.  MLK’s children did not grant permission for the film to use Dr. King’s actual words at Selma (“How Long?  Not Long!”).  While I think that the film’s producers would have won in copyright infringement suit by asserting fair use, maybe they would have lost, and there was no way to get that resolved in time to release the movie for the 50th anniversary of the Voting Rights Act.

Why doesn’t this problem arise for other great American political leaders?  Part of the answer is that public officials cannot copyright their public statements made in an official capacity.  Supreme Court Justices do not own their opinions.  Presidents do not own their State of the Union Speeches.  And so on.  These documents are in the public domain from the moment that they are released.  MLK, though, is the only (or most) consequential political figure who never served in an official role.  Thus, he could copyright his speeches and writings.  Congress could buy the copyrights from MLK’s children, but this would be unprecedented.

I suspect that if MLK were still alive (he would be younger than Jimmy Carter or Bush 41), he would not be enforcing his copyrights in the way that his estate does.  But then again, much more might be different today if MLK were still with us.

15

Benjamin Harrison on Voting Rights

84px-Benjamin_Harrison_PortraitIn reading through the presidential Annual Messages, I was most surprised by President Benjamin Harrison’s communications to Congress.  Harrison was the last president until the 1960s to seek a strong voting rights bill, and his rhetoric on race belies the myth that Republicans stopped caring about African-Americans in the South after 1876.  Consider this passage from Harrison’s 1889 Annual Message:

The colored people did not intrude themselves upon us. They were brought here in chains and held in the communities where they are now chiefly found by a cruel slave code. Happily for both races, they are now free. They have from a standpoint of ignorance and poverty–which was our shame, not theirs–made remarkable advances in education and in the acquisition of property. They have as a people shown themselves to be friendly and faithful toward the white race under temptations of tremendous strength. They have their representatives in the national cemeteries, where a grateful Government has gathered the ashes of those who died in its defense. They have furnished to our Regular Army regiments that have won high praise from their commanding officers for courage and soldierly qualities and for fidelity to the enlistment oath. In civil life they are now the toilers of their communities, making their full contribution to the widening streams of prosperity which these communities are receiving. Their sudden withdrawal would stop production and bring disorder into the household as well as the shop. Generally they do not desire to quit their homes, and their employers resent the interference of the emigration agents who seek to stimulate such a desire.

But notwithstanding all this, in many parts of our country where the colored population is large the people of that race are by various devices deprived of any effective exercise of their political rights and of many of their civil rights. The wrong does not expend itself upon those whose votes are suppressed. Every constituency in the Union is wronged.

It has been the hope of every patriot that a sense of justice and of respect for the law would work a gradual cure of these flagrant evils. Surely no one supposes that the present can be accepted as a permanent condition. If it is said that these communities must work out this problem for themselves, we have a right to ask whether they are at work upon it. Do they suggest any solution? When and under what conditions is the black man to have a free ballot? When is he in fact to have those full civil rights which have so long been his in law? When is that equality of influence which our form of government was intended to secure to the electors to be restored? This generation should courageously face these grave questions, and not leave them as a heritage of woe to the next. The consultation should proceed with candor, calmness, and great patience, upon the lines of justice and humanity, not of prejudice and cruelty. No question in our country can be at rest except upon the firm base of justice and of the law.

I earnestly invoke the attention of Congress to the consideration of such measures within its well-defined constitutional powers as will secure to all our people a free exercise of the right of suffrage and every other civil right under the Constitution and laws of the United States. No evil, however deplorable, can justify the assumption either on the part of the Executive or of Congress of powers not granted, but both will be highly blamable if all the powers granted are not wisely but firmly used to correct these evils. The power to take the whole direction and control of the election of members of the House of Representatives is clearly given to the General Government. A partial and qualified supervision of these elections is now provided for by law, and in my opinion this law may be so strengthened and extended as to secure on the whole better results than can be attained by a law taking all the processes of such election into Federal control. The colored man should be protected in all of his relations to the Federal Government, whether as litigant, juror, or witness in our courts, as an elector for members of Congress, or as a peaceful traveler upon our interstate railways.

8

My Next Book

I’m happy to announce that my next book, tentatively titled The Heart of the Constitution:  How the Bill of Rights Became the Bill of Rights, will be published by Oxford University Press.  Check back with me in two or three years when it’s done.

2

A National University

One proposal that was in many early Annual Messages was that Congress should create a National University in the District of Columbia.  George Washington, James Madison, and John Quincy Adams endorsed this idea, but nothing happened.  (Locating the University within the District would have satisfied concerns about the constitutional power of Congress to create a university.)

I wonder how higher education in the United States would have been different if Congress had acted.  A National University would have wielded a great deal of influence over higher education (you would think) and might have led to a more centralized approach to education more generally.  Whether this would have been a good thing is hard to say.  One could argue that higher education in the United States is strong precisely because it is not dominated by one or two places (I’m talking to you–Oxford and Cambridge), but critics of our system (especially of its cost) might argue otherwise.

2

Call for Papers–Unamendable Constitutional Provisions

The link is here.  Here is the Abstract of the conference, to be held on June 9th in Istanbul:

Modern constitutions today commonly entrench at least one unamendable constitutional provision. An unamendable provision is impervious to the formal amendment rules that authorize alterations to the constitutional text. The Afghan Constitution (2004), for example, makes Islamic Republicanism unamendable, as does the Tunisian Constitution (2014). The Brazilian Constitution (1988) and German Basic Law (1949) both make federalism unamendable. Under the Portuguese Constitution (1976), political pluralism is unamendable, and the same is true of secularism in the Turkish Constitution (1982).

Are unamendable constitutional provisions undemocratic or do they reflect a deep respect for the true democratic foundations of constitutionalism? What are the functions, limits, uses and abuses of such provisions in modern constitutions? What are the optimal conditions under which they achieve the intent of their designers? What circumstances frustrate their intended purposes? This workshop invites abstracts for papers examining any issue related to unamendability, including both formal and informal forms.