Author: Gerard Magliocca


Eligibility to Run for Congress

For the first time since I went into teaching, I took on a pro bono client and argued for her at a hearing before the Indiana Electoral Commission.  I thought I would talk about the issue here, now that the ruling is final–we lost and there will be no appeal.

My client wanted to run for the House of Representatives.  She will turn 24 next month.  The argument against her eligibility is that Article I of the Constitution provides that a member of the House must be at least 25.  Counsel for the challenger took the position that this (and the state statute on ballot eligibility) meant that she had to be 25 by the first day that the next Congress convened (Jan. 3, 2017).

Our position was that the Constitution only bars someone from serving until they reach 25.  In other words, my client was eligible to run so long as she would turn 25 sometime during the term to which she was elected.  The seat would just be vacant until her birthday.

In support of this claim, I pointed out that the Senate seated Rush Holt of West Virginia (who was elected in 1934) even though Holt did not turn 30 (the minimum age for a Senator) until June 1935.  The Senate rejected a challenge to Holt’s eligibility and said only that he could not serve until he turned 30.  (When he did, he was sworn in and served out his term).  Likewise, the House of Representatives seated John Brown of Kentucky (who was elected in 1858), even though he did not turn 25 until June 1860.  (When he did, he was also sworn in and served out his term.)  In no instance had the House or the Senate refused to seat an elected person on the theory advanced by the challenger in my case, and there was no case law to support the challenger’s position.

The Commission ruled in favor of the challenge.  They do not issue written opinions, so I’ll do my best to parse what they said.  I think they thought that our state statute should be read to say that to run you had to be eligible to serve on the first day of the new Congress, and thus the precedents that I cited were not controlling.  I am at a loss to explain why they thought that our statute should be read in this way, as there was no authority on that point.  I think they just thought my client had no chance of winning so hence it was OK to kick her off the ballot.

Now can a state do what the Commission was suggesting?  Maybe.  A state could say that it wanted to be fully represented in Congress, and thus might not want to give ballot access to someone who could not start on Day One.  Would that requirement violate the Eligibility Clause?  (Put another way, do the House and Senate precedents foreclose a state from blocking people such as Brown and Holt from being on the ballot?)  I’d want to give that more thought.  But Indiana definitely did not do this in its ballot statute, and the challenge should have been rejected. Alas . . .



Setting Cases for Re-Argument

One more thought before I call it a night.  An option for the Court is to set cases that are divided 4-4 for re-argument after a new Justice is confirmed.  (Tom Goldstein gives some examples over on SCOTUS Blog.)  I gather that there is no limit to how long this could take.  In other words, if the Court says, “See you in the Fall of 2017,” that can be done.  I would think that this approach only makes sense if there is a circuit split that must be resolved.  Other cases (most notably the   litigation to overrule Abood) will just affirm the lower court without opinion.


What about Fisher?

One of the many puzzles created by Justice Scalia’s death is that the Fisher case (on racial preferences in admissions at the University of Texas) is now down to seven Justices.  (Justice Kagan is recused since she was involved in the litigation as Solicitor General.)

The Court’s rules clearly permit a seven Justice Court to issue a 4-3 decision, but I’m struggling to think of a significant case that was decided on this vote.  When the Court was down to seven Justices in 1971 after the death of Hugo Black and the retirement of the gravely ill John Marshall Harlan, significant cases were set for re-argument before a full bench of nine (including Roe v. Wade).

An obvious problem with a four Justice holding is that it is unstable.  (There’s also something odd about four Justices, in effect, overruling or cutting back a holding made by five.) Setting Fisher down for re-argument won’t help if the new Justice just creates a 4-4 split (Kagan will still be recused).  Besides, I highly doubt that the Court will want to have a third argument in Fisher.

Probably they should just dismiss the writ as improvidently granted, but I suspect that’s not what will happen.



Justice Scalia’s Papers

When I wrote to each of the Justices last year to ask how and when they planned to make their papers available to future researchers, Justice Scalia did not respond.  I hope that he did make some sort of arrangement about this before he died.


Additional Thoughts on the Passing of Justice Scalia

In addition to what I’ve posted at Balkanization, I want to add a couple of further technical things.

  1. Some discussion is already underway about the relevance of Justice Abe Fortas’s inability to get confirmed as Chief Justice Earl Warren’s successor in 1968 (another presidential election year). I recently published a short paper on “The Legacy of Chief Justice Fortas” that talked about this precedent.  There is a significant difference between that situation, which involved a voluntary retirement, and this one, which does not.
  2. What does the Court do with all the argued cases this Term that are divided 4-4?  Issue a per curium that says “affirmed by an equally divided Court” or dismiss the writ as improvidently granted?  I think that they have the same legal effect, but I’m not totally certain.
  3. The stay issued on the climate change regulations, of course, remains in place.  I assume that the same is true for any 5-4 decided case with Justice Scalia in the majority, even if the mandate has not issued.  I’m not sure about the latter though.
  4. Presumably, we will know the outcome of any controversial case almost immediately.  If the Court does not DIG or affirm by a 4-4 vote, then that must mean a majority exists without Justice Scalia (kind of a clear tell).  Of course, the Court could decide not to issue the 4-4 decisions until the end of the Term, which would preserve the confidentiality of the other results.

Staying Alive

I’ve made a related point before, but I think it’s misguided for the Court to issue a stay on an issue as important as the regulations to implement the climate change agreement without an explanation.

While the Justices cannot be expected to write on every motion that comes before them, on matters on great importance they should not hide behind the fig leaf that a stay is not a decision on the merits and thus requires no opinion. The four dissenters on the climate change stay are equally in the wrong–they should also have explained their reasons or contested what the majority did.


Harry Truman and The Bill of Rights–Part Two

188px-Truman_initiating_Korean_involvementTo return to my theme from last week, let’s see how President Truman discussed the Bill of Rights from 1947-1952 as a way of distinguishing the United States from the Soviet Union.

At a Q&A with the Association of Radio News Analysts (May 13, 1947), Truman said:

“I believe in the Bill of Rights. I think that is the most important part of our Constitution–the right of the individual to go where he pleases, to do what he pleases, say what he pleases, as long as he is not materially injuring his neighbors.  That is the basis on which our Government is founded, and I think it is the greatest basis in the world for a government.  Totalitarian governments do not work that way.  The police state is a police state; I don’t care what you call it.  I have tried me level best to get along with our friends the Russians, and I still want to get along with them.”

Address Before the Attorney General’s Conference on Law Enforcement (Feb. 15, 1950):

“I know that it would be easier to catch and jail criminals if we did not have a Bill of Rights in our Federal and State Constitutions. But I thank God every day that it is there, that the Bill of Rights is a fundamental law. That is what distinguishes us from the totalitarian powers.”

Address on Constitution Day at the Library of Congress (Sept. 17, 1951):

“[T]he first 10 amendments–the Bill of Rights . . . are just as fundamental a part of our basic law as the original version that we are sealing up here today. I hope that the first 10 amendments will be put on parchment and sealed up and placed alongside the original document. In my opinion they are the most important parts of the Constitution.

. . .

A Constitution is not just a matter of words. There are other constitutions which may read as well as ours. Just take, for example, the constitution of the Soviet Union. That constitution of the Soviet Union says that Soviet citizens are guaranteed freedom of speech, freedom of the press, and freedom of assembly.  I wonder what would happen to a citizen of the Soviet Union is he tried to exercise any of those freedoms? It professes to guarantee that citizens of the Soviet Union shall be secure in their persons and in their homes. And in addition, it purports to guarantee equality, the right to work, the right to an education, the right to rest and leisure, freedom of religion, and a lot of other fine things.

But these good words in the Soviet Constitution means less than nothing.  They are empty promises, because the citizens of the Soviet Union have no way of enforcing their rights against the state.”



Harry Truman and the Bill of Rights

Harry_S._TrumanMy research on the Bill of Rights is at a new stage, and I thought I’d talk about where that is going.

Two conceptions of the Bill of Rights developed in the first half of the twentieth century. One was the countermajoritarian version that we are familiar with and was expressed best by Justice Jackson in Barnette.  (Basically, that the Bill of Rights is about judicial review and protecting minority rights.) The other is unfamiliar today and is the focus of the paper that I’m submitting to this law reviews.  Let’s call this the “majoritarian” Bill of Rights, which refers to how that text was used to legitimate greater national authority over the states, foreign territories, and the economy.  FDR’s “Second Bill of Rights” speech was the most powerful expression of this idea.

Here’s the fascinating question.  Why did the first understanding oust the second one?  My working hypothesis is that the Cold War had a lot to do with this, and part of my evidence for this is the shift in Harry Truman’s rhetoric on the Bill of Rights during his tenure.  Truman talked about the Bill of Rights as often as FDR did and was the last President who did so in a substantive way.

How did Truman’s rhetoric change?  Well, in 1945 and 1946 almost all of his references to the Bill of Rights involved the majoritarian understanding I described above.  He was either talking about the GI Bill of Rights or FDR’s Second Bill of Rights (which Truman called an Economic Bill of Rights).  In 1947, though, Truman starts using the Bill of Rights as a cudgel against Soviet Communism and repeats that theme in many significant speeches until 1952.  More on that in the next post.


“The Future of Law and Economics”

41h5puOXxSL._AA320_QL65_This week CoOp will be hosting a symposium on Guido Calabresi’s new book entitled The Future of Law and Economics.  I hope you enjoy the posts, which will come from guest bloggers and regulars. The guests are:

Ken Abraham–UVA

Ian Ayres–Yale

Dan Cole–Indiana University, Bloomington

Lee Fennell–University of Chicago

Carol Rose–University of Arizona

Arden Rowell–University of Illinois





William Crosskey’s Unconventional Ideas

I just finished reading the first two volumes of William Crosskey’s magnum opus on Poiltics and the Constitution.  It’s a stimulating book, in part because he pays almost no attention to conventional wisdom on anything.  I thought I’d outline his themes:

1. Congress was given a police power by the Framers.

This is Crosskey’s central argument.  He was fiercely opposed to interpretative theories that embraced states’-rights, and argued that those who took that view–especially Madison–were just supporters of slavery who should be disregarded.

2.  The enumeration of Congress’s powers was meant to express that the President lacked those powers.

Given Crosskey’s first point, he needed some explanation for the enumeration of Congress’s authority.  His answer was that the list should be understood as limits on executive authority.

3.  Most of the Bill of Rights was originally meant to bind the states.  (In other words, Barron v. Baltimore was wrong.)

He argues that Congress intended the First Amendment to apply only to the Federal Government and made that clear by including the word “Congress.” The other amendments, except for the 7th, were general and thus should be read as applying to everyone.

4.  Madison’s Notes on the Constitutional Convention were a fraud.

This, of course, has some truth to it, as Mary Bilder’s new book says.

On all of these issues, Crosskey was a prophet, which is not the same as saying that he was historically accurate.  Still, his historical claims on these issues are very interesting, not to mention some of his other points (for example, Erie was wrongly decided and judicial review of Acts of Congress was not part of the original understanding).  He was a true iconoclast.