Author: Gerard Magliocca


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.”


Bingham on Natural-Born Citizenship

I learned recently that there is an Internet meme that John Bingham took a view that means Barack Obama is not eligible to be President.  This argument suffers from the flaw of being wrong, so let’s discuss.

For starters, it’s worth noting that the Natural Born Clause was never addressed during Bingham’s career in Congress.  Thus, he never gave a speech about the Clause or thought much about it.  In some speeches on other citizenship issues, though, Bingham said that someone born here to parents not bearing allegiance to another country was a native-born citizen.  Aha!  President Obama’s father was a Kenyan citizen, so he did bear allegiance to another nation. This means Obama, despite being born here, is not natural born.

Well, no.  What Bingham meant by allegiance (note he did not say that both parents must be American citizens) was the common-law understanding that birth made you a citizen unless:  (1) your parent was a foreign diplomat; or (2) your parent was a foreign soldier who was occupying American territory.  Diplomats and soldiers bear allegiance to a foreign sovereign in a manner that is very different from the average person.  (Slavery was the exception to the common law rule and Bingham strongly condemned that exception.)

Accordingly, Bingham did not say anything that undercuts the President’s eligibility (or Ted Cruz’s, for that matter).  Nice try.



Happy Birthday John Bingham!

96px-BinghamFacingForwardToday is the 201st anniversary of John Bingham’s birth.  This is an excellent time to announce that my biography of him is coming out in paperback and is now available for pre-order.

I’ve reflected further on Bingham’s life since writing the book and wanted to share my thoughts.  The book concentrated on explaining the development of Bingham’s thinking to help those seeking to understand Section One of the Fourteenth Amendment.  I also wanted to show that Bingham was the central figure in shaping America’s policy during Reconstruction, in contrast to the orthodox view that Thaddeus Stevens was the dominant figure.

I think, though, I did not fully capture how innovative Bingham was.  Part of the problem with his Reconstruction policy was that it was far ahead of its time.  He emphasized individual rights (including the incorporation of what he called the Bill of Rights), voting rights, and the power of textual limitations on racism.  These things eventually came to pass, but not in his era.  When we say that a scientist, an artist, or an author is ahead of her time, that is a compliment.  For a politician, it’s a criticism.  Bingham was unable to see that Stevens was right in focusing attention on addressing economic inequality in the South. Perhaps that strategy could not have succeeded, but then again Bingham’s also did not in his time.

In this presidential election cycle filled with many dispiriting statements, I want to repeat a quote from Bingham that closed the book and best expresses his creed:

When the vital principle of our government, the equality of the human race, shall be fully realized, when every fetter within our borders shall be broken, where the holy Temple of Freedom, the foundations of which our fathers laid amidst prayers, and sacrifices, and battles and tears, shall be complete, lifting its head-stone of beauty above the towers of watch and war, then conscious of duty performed, and a noble mission fulfilled, we may call to the down-trodden and oppressed of all lands–come.


Take Care Tea Leaves

The most interesting aspect of the Court’s certiorari grant in the immigration case yesterday was its decision to add a Question Presented on the constitutionality of the President’s Executive Order.  It strikes me that this is an ominous development if you think that the Order should be upheld.

I think it’s very unlikely that the Court will reach the merits of the claim that the President is violating the Take Care Clause with his immigration/deportation policy.  (Though Justice Thomas might write a separate opinion about this).  But adding this question gives the Court room to execute Chief Justice Roberts’ bread-and-butter play–reading the relevant statutes to avoid a constitutional question by saying that the Order was not authorized by Congress.


More on the Natural-Born Citizen Clause

I want to make some additional observations on Ted Cruz’s eligibility to serve as President.

The op-ed in today’s Washington Post that concludes Cruz is not eligible is unpersuasive.  First, the piece presumes that we must use an originalist approach in resolving the issue without defending that assumption.  Second, even accepting that assumption as valid, the analysis is still flawed.  The author asserts that Blackstone held that natural-born meant “born within the country.”  She then says that those who take a different view “rely on three radical 18th-century British statutes” that were “revolutionary” departures from his view.

I’m confused about what work “radical” does in this passage.  Something is either a statute or it is not.  And these statutes were part of the background law when the Constitution was ratified.  To me, “radical” is the author’s way of saying “Please ignore these laws because they undercut my conclusion.”  This is not, I submit, a great argument. Parliament, after all, was free to alter the common law.


One final suggestion.  The Framers were quite hypocritical in imposing a limitation on future generations that they refused to apply to themselves.  If they really felt that there was a prospect of some foreign-born Manchurian Candidate becoming President, why were they so certain that did not apply to anyone who was a citizen before 1788?

UPDATE:  I deleted the part of the post about the fact that the Clause did not matter until long after the Founding because it was not well-written and was just confusing people.



What is the Best Constitution in the World?

Consider this a poll.  There are many folks who are critical of the American Constitution.  If you are in this camp, I’m wondering what you would call the best global constitution. (Mind you, I don’t mean what country is governed best, as that could be largely unrelated to its constitution.)  Is it Germany? Canada? Britain?  Someplace else.  And feel free to explain why.


Using Secret Materials for Interpretation

Greetings from the AALS! I wanted to post about something that I’m thinking about in relation to a paper idea.

Many Supreme Court opinions are ambiguous or susceptible to different readings.  The Justices discuss the issues in confidence until the decision comes down, and then decades later the papers from those deliberations become available.  What a wonderful resource, you would think, in understanding what a particular opinion is supposed to mean.

Except courts don’t use those materials.  In other words, it is seen as inappropriate to cite the “work product” of the Court to ascertain the meaning of a decision.  This, of course, is unlike the interpretation of statutes, which often look to legislative history.  Ah, you might say, legislation is different.  Those discussions are public, and that makes them fair game in a way that confidential deliberations are not.

Except that when courts interpret the Constitution, they do use the secret deliberations of the Framers in construing that text.  Why is that appropriate when citing the Court’s work product is not?  (I’m talking about lawyers and courts.  Historians can cite anything they want.)  What is the principled distinction between these two?

Granted, the work product of the Court may often be unhelpful in shedding light on a decision.  But right now you can’t use them even if they were helpful.  Do decisions always speak for themselves?

Two last thoughts.  One is that the first case that extensively cited the deliberations of the convention was Dred Scott, which suggests that perhaps that practice should be reexamined.  Second, there is one case where the Justices do cite extrinsic materials to construe a case–Brown.  The Court has cited the briefs in Brown to determine what Brown, which tells you something about Brown’s place in the constitutional canon.