Author: Gerard Magliocca

5

The Third Amendment and the Civil War

Here’s a thought that occurred to me yesterday.  When the Army of Northern Virginia invaded the North in 1862 and 1863, there must have been situations where Union officers quartered in private homes.  (Maybe only generals did this, but still.)  Was this always the product of homeowner consent?  If not, would this have violated the Third Amendment?  The Amendment says that troops may be quartered in homes during wartime “in a manner to be prescribed by law.”  As far as I know, though, Congress never passed a statute during the Civil War governing this sort of situation.

I suppose you could say two things about this.  One is that “quartering” does not refer to a soldier staying in your house for one or two nights during a campaign.  Rather, it’s a more permanent stationing of troops.  The other is that consent was always given, though in practice consent may have been meaningless when armed troops showed up at your house and “asked” if they could stay with you.  Thoughts?

0

The Purposes of a Bill of Rights

As part of my research for my next book (and perhaps for another paper), I’m thinking through what bills of rights do and why we have them.  The best discussion of this subject was in an article by David Strauss written in 1992, where he identified three ways of thinking about a bill of rights:

1.  A Bill of Rights is Just a Code:  A bill of rights simply reflects whatever a given society or jurisdiction deems important.

2.  A Bill of Rights Is Only About Fundamental Rights:  You can understand a bill of rights as something that only addresses rights that no democratic society can do without.

3.  A Bill of Rights Is About Political Failure:  You need a bill of of rights to deal only with rights that elected institutions are likely to invade or abuse.

Depending on which of these three views you take, different provisions in bills of rights (and bills of rights more generally) look different.  The first theory describes many state bills of rights, which include all sorts of things that look pretty ordinary.  The second theory would reject the inclusion of many things that are in the Bill of Rights, such as the right to a grand jury indictment or a jury trial.  The third would posit that the Third Amendment is the sort of thing that need not be in a bill of rights since no elected legislature would quarter troops in homes.  And so on.

Another way of examining this question asks what role bills of rights have served historically (let’s just focus on the United States in this post).  For instance,

1.  Justifying Revolution:  The first state bills of rights, especially the Virginia Declaration of Rights, were all revolutionary statements justifying independence.  This is why they contain many broad statements on natural rights and read like the Declaration of Independence.

2.  Defending Federalism:  This, of course, was the purpose of the first set of amendments in 1791.  The Anti-Federalists rallied around a bill of rights as a way to limit the new federal government.

3.  Limiting the Police Power:  This was the purpose of state of bills of rights after the Revolution.

4.  Limiting Federalism:  This was the purpose of John Bingham and those who called the first set of amendments a bill of rights during Reconstruction.  The Bill of Rights trumps states’-rights.

5.  Justifying Colonialism:  As I explained in a prior post, doubts about whether America should govern colonies acquired during the Spanish-American War were soothed by giving those colonies bills of rights.

6.  Justifying Judicial Review:  This was a purpose of the Bill of Rights after the New Deal.  People are more likely to accept judicial review framed as an application of the Bill of Rights.

I’m working on one or two other angles that I may post on later.

1

A Negative Right of Publicity?

I was batting around the following issue with a student today.  Suppose that a celebrity makes a positive statement about a product or is seen publicly using that product.  The product manufacturer, horrified by any association with this person, issues a statement saying that they are not associated with the celebrity.

Would the celebrity have a right of publicity claim under these circumstances?  One could argue that the corporate statement is an unauthorized use of the celebrity’s name and image for commercial gain.  In this example, though, you would have a negative or reverse endorsement of the brand.  The firm would say that their brand is defined in part by not being somebody.

Presumably, a firm has some First Amendment interest (and a Lanham Act interest) in disassociating itself from unwanted people or actions.  What limits, if any, are there on these interests?

0

Justice Souter’s Papers

To follow up on yesterday’s post, media accounts from a few years ago state that Justice Souter donated his Supreme Court papers to the New Hampshire Historical Society with the condition that they not be opened  until 2059.  This restriction strikes me as hard to justify, though of course Justice Souter could still change his mind and open them up sooner.  I will be writing to Justice Souter’s chambers to confirm.

6

The Papers of the Justices

One frustration for legal historians and Supreme Court scholars is that there is no uniform policy on the preservation and availability of the Justices’ papers.  Unlike presidents, Justices can destroy their papers, make them completely unavailable, give them to anyone, or impose all sorts of crazy conditions on access.  I would prefer that a federal statute be enacted to fix this problem, but in the meantime it would be useful to know what each Justice (retired and sitting) plans to do with their papers.

Accordingly, I’m going to write each Justice’s chambers to ask about his or her plans.  Some will say that they do not know yet, but the scholarly community would benefit from knowing about the ones who have decided.  I’ll let you know what I find out.

UPDATE:  For example, Chief Justice Rehnquist’s papers on his Supreme Court tenure are closed until every member of the Court that served with him dies.  That’s a LONG time.

UPDATE #2:  An alert reader points out that Chief Justice Rehnquist’s papers actually open after every member of the Court that served with him in a given year dies.  For example, his Court papers from 1972-1975 are open (they are held by the Hoover Institution at Stanford).  When Justice Stevens dies, the files from 1975-1981 will become available.  (Presumably that will include all of Chief Justice Roberts’ papers as a law clerk.)

4

Is the Logan Act Constitutional?

Now that the argument in King v. Burwell is over (looks like the Government will win, though three years ago it looked like the government would lose and then . . .), let us return to other subjects.

In 1799, Congress passed the Logan Act, which states, in part:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

Nobody has ever been convicted under this statute, and I have to wonder whether it is constitutional.  Why don’t I have a First Amendment right to carry on correspondence with a foreign government or official to influence their policies in connection with ours?  If you construed this statute narrowly (say, to apply to giving the enemy information in wartime), that’s one thing, but the Logan Act covers much more.  The fact that this was passed by the same Congress that gave us the Alien and Sedition Acts (and was meant to bar Jeffersonians from talking to France), combined with the total lack of convictions over more than 200 years,  makes the case for constitutionality look even weaker.

5

The Arizona Redistricting Case

The press reports of today’s oral argument suggest that the Court will find the Arizona state constitutional amendment unconstitutional.  The Justices evidently think that the state legislature does have standing and that the federal statute governing redistricting does not authorize what Arizona has done.  (I think the statute does authorize the plan.)  On the constitutional issue, as I said in prior posts, I am inclined to agree that this is unconstitutional, though I find the issue challenging and took a long time to settle on a position.

17

Last Pre-Argument Thoughts on King v. Burwell

I’ll have more to say after we see the transcript on Wednesday (evidently we will not get same-day audio of the argument), but beforehand I thought I’d offer some final pre-game observations.

1.  We’ll see if any of the Justices ask about standing.  Thus far, there is no sign that any are interested.

2.  To me, the problem in the case is that neither side’s story is compelling.  Petitioners are arguing that Congress intended that subsidies would be available only on state exchanges.  I think that is implausible.  Respondents are arguing that “established by the State” is ambiguous.  That is also not plausible.

Instead, I think what we have is a text that is unambiguous and erroneous.  What is the right response to that?  Some errors of this type (say, a typo that gives the wrong date) would not be followed.  Others would not be followed because of some sort of constitutional avoidance doctrine.  This case falls into neither of these categories.  You could say something like “if this was an error, then Congress must usually be held to the mistake to ensure better drafting in the future.” (The subtext here would be “Don’t use reconciliation to enact major legislation.”)  Or you could say, “if there is an error then it should be disregarded, but the burden is on those alleging that there is an error to prove that there is.”  Maybe the respondents cannot meet that burden here.  These are the right questions, though the answer is not so clear.

3.  I’ll be curious to see if the Justices focuses on remedial questions.  If you want to rule for petitioners, you may want to reassure the uncertain that such a decision will not blow up Obamacare.  Some states will create their own exchanges in response.  Others could (as I have suggested elsewhere) try just delegating their exchange responsibilities to the federal exchange.  The Court could delay the application of its order for, say, six months to avoid chaos when subsidies are terminated in many states.  If Kennedy and the Chief Justice ask a lot about this, then they would suggest to me that they will go against the Gov’t.