Author: Gerard Magliocca


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.





“Yes, Prime Minister” on Last Night’s Debate

“This is how you deal with questions. If you have nothing to say, say nothing. Better still, have something to say and say it, no matter what they ask. Pay no attention to the question. Just make your own statement.  If they ask the question again, you say, ‘That’s not the question’ or ‘I think the real question is’ and then you make another statement of your own.”

Prime Minister Jim Hacker


Twelfth Amendment Follies

One thing that we can say about this election is that the odds of a significant third-party candidacy are at their highest since 2000.  Maybe it will be Michael Bloomberg.  Maybe it will be a conservative who can’t stand Donald Trump.  Maybe it will be Donald Trump.

With this in mind, we should pause to consider how poorly the Twelfth Amendment was designed to handle situations where no presidential or vice-presidential candidate receives a majority in the Electoral College.  For example:

The House of Representatives must choose from the top three presidential candidates, but in this ballot each state gets one vote and a majority of the states is required to win.  (The assumption here is that you need a majority of a state delegation to cast a vote.)  This means that the member from Delaware gets the same vote as 28 Representatives from the California delegation.  It also means that states with equal divided caucuses may be unable to cast a vote, or that an illness that prevents some member from voting could swing a state’s vote.  Egads.

Next, the Senate gets to choose the Vice-President by an ordinary majority vote but only from the top two candidates.  [Query:  Could you filibuster this?  Maybe.]  This means that the President could get saddled with a Vice-President from the other party.  Worse still, the third candidate for President cannot get his or her running mate.  (Basically, the Vice-President would have to resign and then allow the new third-place President to nominate a new one.)

This creaky machinery has not been used since 1837 (when the Senate had to pick the Vice-President).  Let’s hope we don’t need it next January.



The Tenth Amendment in 1791

I’m reading William Crosskey’s Politics and the Constitution, which contains many wonderfully strange arguments and observations.  Here’s one that I found interesting.

When the constitutionality of the First Bank of the United States was debated in 1791, critics such as Thomas Jefferson invoked the Tenth Amendment to support their position.  But there was a problem with this.  The Amendment was not yet ratified (that did not happen until after the Bank bill was signed into law.)

What was the rationale for citing a proposed but unratified amendment?  Clearly Jefferson et. al. were not acting as legal positivists.  Maybe everyone thought that the Tenth Amendment would be ratified, thus it should be taken into consideration.  Or maybe the thought was that a proposed amendment that gets the required supermajority in Congress is some sort of persuasive authority.  (Arguably the Supreme Court did something similar in Frontiero by citing the passage of the ERA by Congress in its decision striking down a law discriminating on the basis of sex.) Or maybe the Tenth Amendment was seen as just declaratory.



The Supreme Court and IP

I would like to dissent from a recent trend that I see in IP. Two recent certiorari petitions (still pending) are asking the Court to get involved in doctrines that they have left alone for decades–the right of publicity and design patents.  These petitions are supported by many scholars that I respect, but I submit that they are making a mistake in asking for this sort of intervention.

While there are significant First Amendment issues raised by the right of publicity, I see no indication that publicity law is working poorly and needs help for the Justices.  Moreover, I see no reason to think that the Justices will actually be helpful in an area of law that they know nothing about.  Design patent, I think, is the same story, though there the argument for Supreme Court action is even weaker given the absence of any constitutional concerns.

I’m not against asking the Supreme Court to decide IP cases.  Far from it.  With respect to utility patents, there was (and still is) a need to rein in the Federal Circuit’s errors and excesses.  In the two areas that I’m highlighted, I think the Court will just mess things up and should stick with “Do No Harm.”