Author: Gerard Magliocca


No Questions Asked

GutmanCairoMaltFalc1941TrailerIn going through what happened to the original parchments of the Bill of Rights, I’ve come across another oddity that I’d like to share.

The Library of Congress and the New York Public Library both hold originals from 1789.  The LOC purchased its version from a manuscript dealer in 1943, and the New York Public Library acquired its copy somewhat earlier.

Where did they come from?  There were 14 copies made and signed by the relevant congressional officials (such as John Adams and the Speaker of the House).  The one now in the National Archives was the copy retained by the Federal Government, and one was sent to each state.  Some of those copies went missing or were destroyed.

Doesn’t this mean that the copies in the LOC and in the NY Library are two of those missing state versions?  Don’t they belong to the states to which they were originally sent?  Put another way, aren’t these copies stolen property?  Not so, they say.  The theory of both institutions is that the clerk in the First Congress made some “extra” copies and that these are what they have.

The trouble is that there is no evidence that any extra copies were made.  Indeed, when the Library of Congress bought its version in 1943, it was from a dealer who (like Peter Lorre in The Maltese Falcoln) went with the thought that “No questions will be asked” about its origins.  Perhaps there is no way of proving which state each copy came from, but an expert might be able to figure that out.


Stealing the Bill of Rights

I wanted to share a story about the Bill of Rights that I had not heard  before, though perhaps some of you have.

In 1789, each state was sent a copy of the 12 amendments proposed by Congress. The one sent to North Carolina, though, was stolen by a Union soldier at the end of the Civil War.  He returned to Ohio and sold it to a man named Charles Shotwell for $5.  (Shotwell may have been related to the Shotwells of Cadiz who knew John Bingham, but I’m not sure).  Shotwell moved to Indianapolis, where he kept the copy in his office or in his house until his death in the 1930s!  The document then passed down through the family until 2002, when it was sold to an antiques dealer.  He then tried to sell the text to the National Constitution Center, but at that point the FBI came in and seized the relic as stolen property.  Ultimately, the courts held that the document belonged to North Carolina.

Anyway, the full story is told in this book, which is a fun read.


The Many Bills of Rights

202px-Webster_2One theme of my next book is that in the nineteenth century many texts vied for the title of our national bill of rights.  Thus, when you see references to the Bill of Rights before the 1890s, you can’t be sure what you’re seeing.

Here’s an example that I’ve finally figured out.  In 1867, President Andrew Johnson vetoed the Second Reconstruction Act, which was part of Congress’s plan to impose military rule on the South until the Fourteenth Amendment was ratified.  In that veto, Johnson quoted Daniel Webster, who said: “[T]he military must be kept, according to the language of our bill of rights, in strict subordination to the civil authority. Wherever this lesson is not both learned and practiced there can be no political freedom.”

Now at first this is puzzling.  While you can construe parts of the Bill of Rights, like the Third Amendment, as being about civil supremacy over the military, there certainly is not any clear language on that.  Then I thought, “Well, maybe Webster and Johnson were referring to the Declaration of Independence.”  People back then did call that a bill of rights, and it does speak directly to the issue of civil/military relations in one passage condemning George III.

So then I looked for the original Webster quote.  It’s in an oration he gave in 1843 to dedicate the monument at Bunker Hill.  (He gave an even better speech there when they began building the monument in 1825.)  Turns out Webster was talking about the Massachusetts Bill of Rights (by “our” he meant “in our state”), which also talks about keeping the military subordinate to civil authority.

Indeed, during Reconstruction you see “our Bill of Rights” defined as

  1.  The Massachusetts Bill of Rights (by Johnson)
  2. Article I, Section 10 of the Constitution (by the Supreme Court)
  3. The first eight amendments (by some members of Congress)
  4. The first ten amendments (by other members of Congress)
  5. The Declaration of Independence (by still others)

There were other candidates (maybe I’ll do another post on that later in the week).


Why Was There No Bill of Rights in the Constitution?

As promised, here come the posts about the Bill of Rights.

One question that naturally arises is why did the Constitutional Convention not include a bill of rights in its proposal, especially given that this omission helped rally the Anti-Federalists?  Here are a couple of thoughts on that:

1.  Some of the delegates (most notably Madison) thought that a bill of rights was either unnecessary or harmful.

2.  Some of them hailed from states that did not have a bill of rights in their state constitution.  It is easy to see why many of these folks would not have thought the issue important.

3.  The delegates had more pressing concerns, such as how congressional representation should look or how the President would be chosen.

4.  The first suggestion to have a bill of rights came from George Mason just five days before the Convention adjourned.

As anyone who has run a lengthy meeting or process knows, complex suggestions that come at the end often get ignored or rejected because people are tired and eager to finish.  Mason may have anticipated this problem, as he added (somewhat hilariously) that it would only take “a few hours” to write a satisfactory bill of rights. Perhaps, then, we owe the lack of a bill of rights in 1787 to nothing more than the failure to suggest the idea in July or June.


Judge Posner Is Wrong

I want to draw your attention to the Seventh Circuit’s opinion in Rowe v. Gibson, which addresses a Section 1983 claim by a prisoner. The panel was sharply–very sharply–divided on the majority’s reliance on facts outside of the record drawn from some medical websites.  Judge Posner, who wrote the majority opinion, argued that this was appropriate, while Judge Hamilton dissented and said that this research was not appropriate.  (Disclosure–I have met Judge Hamilton at some functions, but not for many years.)

I think the dissent has the better of this argument, and that Judge Posner’s discussion of the issue is poorly reasoned.  Here is a key passage:

There is a high standard for taking judicial notice of a fact, and a low standard for allowing evidence to be presented in the conventional way, by testimony subject to cross-examination, but is there no room for anything in between? Must judges abjure visits to Internet web sites of premier hospitals and drug companies, not in order to take judicial notice but to assure the existence of a genuine issue of material fact that precludes summary judgment? Are we to forbear lest we be accused of having “entered unknown territory”? This year the bar associations are busy celebrating the eight hundredth anniversary of Magna Carta. The barons who forced King John to sign that notable document were certainly entering unknown territory, and risking their lives to boot. Shall the unreliability of the unalloyed adversary process in a case of such dramatic inequality of resources and capabilities of the parties as this case be an unalterable bar to justice? Must our system of justice allow the muddled affidavit of a defendant who may well be unqualified to be an expert witness in this case to carry the day against a pro se plaintiff helpless to contest the affidavit?

My first thought on reading this is that Judge Posner’s comparison of his situation to the barons at Runnymede sounds like something silly that an undergraduate would say in a seminar paper.  My next thought is that is this sounds a lot like saying that courts should do factual research on behalf of pro se plaintiffs or plaintiffs who look overmatched in the adversarial process.  Where does that end?

Maybe we would be better off with an inquisitorial system.  But we don’t have one, and Judge Posner can’t give us one (comparisons to Magna Carta notwithstanding).  He should know better, but recently his decision read as if he just knows best.


Birthright Citizenship

As the presidential primary season is here, that means that we are again seeing Republican candidates making the claim that Congress can and should abolish birthright citizenship by statute (Hello, Mr. Trump).  Senator David Vitter, for example, has introduced “The Birthright Citizenship Act of 2015” to do just that.

As I explained in an article several years ago, such a statute would be unconstitutional.  As John Bingham and others said at the time, the law was well-established that virtually all free people born here were citizens, and slavery was an unacceptable exception to that rule.  There were only two other exceptions at common law.

1.  Children born here to foreign diplomats.

2.  Children born here to foreign troops engaged in hostile action against the United States.

Neither of these narrow categories apply to the children born here to illegal aliens.  Their parents are not part of a hostile military force, even if people sometimes loosely call them “invaders.”

A close reading of Section One of the Fourteenth Amendment confirms this view.  Illegal aliens receive equal protection and are deemed to be under the “jurisdiction” of the states.  So you cannot turn around and say that the same illegal aliens are not “subject to the jurisdiction” of the United States under the Citizenship Clause.

UPDATE:  I corrected this post to fix some errors that were in the first version.


Early Voting and a Uniform Election Date

I’ve got a question for folks who are knowledgeable about election law. During the early nineteenth century, states held elections for the House of Representatives and for Presidency on different dates.  The results would slowly trickle in over a few months.  Eventually, Congress concluded that this was not a good system and established a uniform national election day for federal offices.

Why then is early voting in some states for these offices permissible? In effect, we no longer have a uniform national election day.  I can think of a few ways of reconciling this (after reading the statutes):

1.  The “election” means the last day that votes can be cast.  You cannot have late voting, but you can have early voting.  Maybe, but does that mean that a state can set early voting to begin at any time after the nominees are known?  Say, a day after the primary? And did Congress really have early voting in mind when they created a uniform election day?

2.  The “election” means the day that the votes are counted.  We want all of the results announced on the same day (if possible), and that is what the statutes require.  Maybe, but I would think that the ordinary meaning of an election involving casting and counting, not just counting.

3.  There have always been exceptions to a uniform election day (namely, absentee voting).  Thus, the federal statutes do not require all votes to be cast on the same day.  True enough, but how far can you take this logic?

UPDATE:  The Fifth Circuit addressed this issue in Voting Integrity Project, Inc. v. Bomer, 199 F.3d 773 (5th Cir. 2000).  Basically, the Court went with a combination of all three reasons listed above.  The only limit to early voting that a state may not conclude the election prior to Election Day.


Griswold and Abortion

This part of the oral argument speaks for itself:

Justice Black: Would your argument with reference to all these things you’ve been talking about relating to privacy and so forth, would invalidate all laws that punish people for bringing about abortions?

Mr. Emerson: No, I think it would not cover the abortion laws or the sterilization laws, Your Honor.

Those – that conduct does not occur in the privacy of the home.

Justice Black: There is some privacy, as a rule, and the individual doesn’t usually want it made known, it’s a very private thing.

Mr. Emerson: Well, that aspect of it is true, Your Honor, but those are offenses which do not involve the type of enforcement apparatus as to what goes on in the home that this —

Justice Black: Part of it goes on in the home, undoubtedly?

Mr. Emerson: Part of it does, Your Honor, but the conduct that is being prohibited in the abortion cases takes place outside of the home, normally.

There is no violation of the sanctity of the home.

Justice Brennan: Well, apart from that, Mr. Emerson, I take it abortion involves killing the life of a being, doesn’t it?

Isn’t that a rather different problem from contraception?

Mr. Emerson: Oh, yes, of course.

Justice Brennan: And isn’t it different in the sense of the State’s power to deal with it?

Mr. Emerson: Oh, yes.

Of course, the substantive offense is quite different here.

Justice Black: Are you saying that all abortions involve killing or murder?

Mr. Emerson: Well I don’t know whether you need characterize it that way, but it involves taking what has begun to be a life.

Justice Black: But the State thinks each of them is wrong, and it passes a law to forbid it being done.

It relates to a pretty closely analogous situation [Inaudible]

Mr. Emerson: Yes, Your Honor, but that case is different from this situation because in the abortion cases Connecticut does not apply this moral principle.

It is the use of an instrument to prevent birth taking place, but they do not apply the moral principle that it can never be done.

In Connecticut, abortion is allowed where it is necessary to save the life of the mother or the child.

So that the basic moral principle that Connecticut is trying to enforce here, they simply pay no attention to in their abortion laws.

It’s a completely inconsistent application of the principle.

They don’t take it seriously in the abortion cases, only in contraception cases.


Lochner What Now?

I hesitate to post about Lochner v. New York, as David Bernstein over on Volokh is the expert on the case.  But I was listening to oral argument in Griswold v. Connecticut today, and I came across this interesting exchange.

Thomas Emerson, arguing on behalf of Griswold, told that Court that he was not asking the Justices to revive Lochner.  Justice Hugo Black responded that “it sounds to me like you’re asking us to follow the constitutional philosophy of that case.”  Black then said:

“That was the one that held that it was unconstitutional, as I recall it, for a state to regulate the size of loaves of bread . . . . because people were being defrauded, was that it?”

Well, not exactly.  Lochner was about the regulation of maximum hours for bakers.  Maybe Justice Black was just old and forgetful at this point, but to me this is further evidence that Lochner was just not that well known in 1965.


The Bill of Rights in World War Two

18339_150pxI came across a speech that Fiorello LaGuardia, the famed Mayor of New York, gave on Bill of Rights Day in 1941. I thought his analysis was interesting, especially with respect to the Second Amendment:

“Could Hitler, the Mikado [Emperor Hirohito], or Mussolini remain in power if their people had freedom of speech?  Of course not. Could their governments retain power if they had a provision as to the right to bear arms?  Could they last at all if their people were free to assemble and discuss public issues?  Could they maintain concentration camps and continue a policy of persecution if they had a proviso for indictment and trial by jury.  Not at all. Could they for a moment have freedom of religion when the Mikado and Hitler are deluded into believing that they are the Ersatz for the Almighty”