Author: Gerard Magliocca


The Spirit of the Constitution

Recently I’ve been asking myself this question:  What do people mean when they refer to “the spirit of the Constitution?”  It’s a phrase that was used by John Marshall in M’Culloch v. Maryland and which shows up in a lot of Supreme Court opinions.  Originally it was probably a play on Montesquieu’s Spirit of the Laws, which was influential in the eighteenth century.  But what does the phrase mean now?

My initial thought is that this is either purely rhetorical (“This violates the letter and the spirit of the Constitution”), a statement that something is unconstitutional even though there is no text or precedent that says so, or a statement that something is legal but should not be done.  Take President Obama’s Executive Order on immigration.  If I say that the order violates the spirit of the Constitution, am I saying that it is constitutional or is not?  I need to look more carefully at how this phrase is typically used to develop a solid answer.


Two Cheers for the Senate

It is easy to take shots at the Senate.  It violates the one-person, one-vote standard as between the populations of the states.  You often need sixty votes to get anything done.  The rules are arcane.  And so on.  But I want to put in a good word for the Senate.

The principal advantage of the Senate is that the two parties are on a much more equal footing there than they are in the House of Representatives.  Consider that from 1954 to 1994 Democrats controlled the House.  Since 1994, the Republicans have controlled the House for all but four years.  Before 1954, Democrats controlled the House for all but four years from 1932 to 1954.  In other words, the House of Representatives rarely changes hands.  Why is that?  One explanation is that incumbency matters more in low-profile House races.  Another explanation is gerrymandering.

By contrast, the Senate changes hands more frequently (at least since 1980).  The GOP held it from 1980-1986.  Then the Democrats held it from 1986-1994.  Then the the GOP was back from 1994-2001, then Democrats held control in 2001-2002, then the GOP from 2002-2006, then the Dems from 2006-2014, and now the GOP again.  Why is that?  You cannot gerrymander Senate races, for one thing.  Secondly, the states up for reelection in any given year usually favor one party over the other, but rarely the same party.  And third, incumbency probably matters less for Senators.  (Ask Mary Landrieu if her three terms of bringing home the pork helped when her party’s President is unpopular in her state.).  The Senate was obviously not designed to make party competition more lively, but that is the result.  And I submit that this is a healthy thing.


The Bill of Rights and the Ninth Amendment

One of the issues that I’m going to explore in my next book (an announcement about that should be coming soon) is the debate between those who think that the Bill of Rights consists of the first ten amendments and those who think that text includes only the first eight amendments.  People rarely explain why they give the definition that they do, so we need to fill in that gap with some speculation.  Part of the answer for the “eight amendments” crowd must be that they did not care for states’-rights or thought that that the Bill of Rights addressed only individual rights.  (Adios, Tenth Amendment.)   Since the first references to the Bill of Rights as “just eight amendments” came during Reconstruction, any antipathy towards the Tenth Amendment is understandable.

A more interesting question is what the “eight amendments” interpretation of the Bill of Rights says about the Ninth Amendment.  If you think that the Ninth Amendment protects unenumerated individual rights (or at least says that they are not precluded) then there is every reason to include that as part of the Bill of Rights.  Nevertheless, I can find only one case that defines the first NINE amendments as the Bill of Rights, even though that reading makes sense.  Those who excluded the Ninth must have either thought that this provision did nothing important or did not protect individual rights.  How common was this view?  Not uncommon, though I’ll note that John Bingham was in the “first ten amendments” camp.  Since the 1970s, though, the “first eight amendments” view had faded away.  Could this be because unwritten rights and states-rights have gained traction since then?


Presidential Censure

In the wake of the President’s executive order on immigration, at least one Republican member of Congress has called for a Censure Resolution declaring the President’s conduct either unlawful or wrong.  (I’m not sure which.)  The precedent for this during Andrew Jackson’s presidency, which I talked about in my first book, is very problematic given that only the Senate censured the President, Jackson protested that the resolution was unconstitutional, and the resolution was later repealed by the Senate.

Here’s a broader question.  Is there any limit on Congress’s power to pass a joint resolution that does not create binding law?  In other words, can Congress pass any resolution that just gives its opinion?  Suppose they want to say that the police officer in Ferguson should have been indicted?  Or that Bill Cosby is a rapist?  Or that Putin is not the legitimate president of Russia?  One thought is that resolutions like these are purely symbolic, and so there are no constitutional limits.  But you could say that these statements might matter (for instance, in a civil suit brought against a named person, or in some diplomatic negotiation).  If that is true, though, how does one articulate the limits on Congress’s expressive rights?  Does the President need to denounce one that goes too far?  Should courts not allow such statements to go before a jury?


The President’s Executive Order on Immigration

I want to discuss the way in which critics of the President’s Executive Order are making their case, as I think at least one of the arguments raises a genuine dilemma that I keep coming back to in my recent research. Here are some ways of thinking about why what the President did is wrong (if you believe that):

1.  He does not have the statutory authority to issue the order.

Presumably, a slew of lawsuits will be filed on this question.  I have no idea what the answer is, but that will get sorted out by the courts.

2.  He does have the legal authority to act, but doing so is a political mistake.

Maybe, but that will also be proven with time.  If a Republican wins the White House in 2016 (0r in some future election assuming that no new statute is passed), then the order could be reversed.

3.  He does have the legal authority to act, but he should not use that authority because the only legitimate way to do what he did is through legislation.

This is an argument that folks like David Brooks seem to be making, and I find this much more interesting.  Why should this only be done through legislation?  Because executive action in this respect is unprecedented?  Because major policy changes should always be done via statute?

The reason I ask is that I do think that there are “legal but unconstitutional” actions, and I’ve talked about them in prior posts.  (A simple example is when presidential electors in a state decide to vote for someone other than the person who won that state.  They can do that, but the voters would throw a fit.)  I think that this situation arises, though, only when there is extensive precedent against exercising a legal power (basically, a sort of desuetude) or there is a powerful norm that makes the legal action suspect.

Is there a norm that says presidents should not undertake “major” changes via executive orders that are lawful?  I’m not sure.  President Truman’s Executive Order desegregating the armed forces was a very big deal, but that was not done via statute.  Affirmative action at the federal level is, to a large extent, based only on executive orders.  There may be more examples.  Do they cover the immigration case?



The Grand Jury in Ferguson

Up until now, I have not had anything to say about the events in Ferguson. I’m not an expert on policing or racial profiling, and sometimes you have to know your limitations. But I am fascinated by the deliberations of the grand jury, which are a throwback to another time.

The most common phrase that goes with “grand jury” nowadays is “ham sandwich.”  Not so here.  Ordinary citizens are carefully considering whether an indictment or “true bill” should issue in a controversial case.  This is what the Framers had in mind when they wrote the grand jury into the Fifth Amendment, and they were drawing on a rich colonial and British tradition of grand juries shielding people from wrongful accusations or expressing the community’s view on a criminal prosecution.

The trouble now is that this only works when the case reaches an astronomical level of visibility.  In ordinary cases, an information is at least as good, if not better, at serving the functions of a grand jury (especially when combined with some form of prosecutorial accountability.)  This may explain even ardent supporters of incorporation seem uninterested in reversing Hurtado and making the grand jury requirement applicable to the states.



Close to Home

82px-William_Jennings_Bryan_cph.3b33180I recently learned an interesting fact that is not relevant to any current event.  William Jennings Bryan gave his acceptance speech for the 1900 Democratic presidential nomination across the street from my office.  In those days, candidates accepted their nomination after (not during) the convention.  Indeed, there was a tradition where a delegation from the convention went to the candidate’s home to present the invitation to run.  When Bryan gave his acceptance speech, he chose an outdoor rally in Indianapolis as the venue, and that location is now mostly occupied by the campus on which my law school sits.  (I’m sure there is a plaque somewhere the designates the exact sp0t.)

This was be the second most important speech ever given in Indianapolis.  The most important was this one.


Does King v. Burwell Present Constitutional Difficulties?

Here is an interesting point raised in this piece by The New Republic.  If the Court interprets the ACA to say that subsidies may go only to states that set up exchanges, then wouldn’t that raise a Spending Clause issue under South Dakota v. Dole and NFIB v. Sebelius?  Maybe that use of Congress’s spending authority is too coercive (whatever that means) because the subsidies are large and a state would suffer a lot if they had a health insurance system without federal subsidies while their neighbor had one with subsidies.

Mind you, I can see why what Congress may have done with the ACA subsidies is constitutional, but that’s not the question.  The question is whether the challenge to the Act raises “constitutional difficulties” that should be avoided by not reading the Act as providing for conditional spending.  I’m not sure what to think about this yet.