Author: Gerard Magliocca


Call for Papers–Unamendable Constitutional Provisions

The link is here.  Here is the Abstract of the conference, to be held on June 9th in Istanbul:

Modern constitutions today commonly entrench at least one unamendable constitutional provision. An unamendable provision is impervious to the formal amendment rules that authorize alterations to the constitutional text. The Afghan Constitution (2004), for example, makes Islamic Republicanism unamendable, as does the Tunisian Constitution (2014). The Brazilian Constitution (1988) and German Basic Law (1949) both make federalism unamendable. Under the Portuguese Constitution (1976), political pluralism is unamendable, and the same is true of secularism in the Turkish Constitution (1982).

Are unamendable constitutional provisions undemocratic or do they reflect a deep respect for the true democratic foundations of constitutionalism? What are the functions, limits, uses and abuses of such provisions in modern constitutions? What are the optimal conditions under which they achieve the intent of their designers? What circumstances frustrate their intended purposes? This workshop invites abstracts for papers examining any issue related to unamendability, including both formal and informal forms.


Giving Cabinet Members Seats in Congress

A surprise in my review of presidential Annual Messages is that there was a serious push in the late 19th and early 20th centuries to give members of the Cabinet non-voting seats in the House of Representatives.  A congressional committee issued a favorable report on this in the 1880s, and President Taft endorsed the idea in his 1912 Annual Message.  Basically, this was designed to foster closer congressional/executive relations a la the British system, though Taft acknowledged that the Constitution prohibited giving Cabinet officials voting rights in Congress.  Nevertheless, non-voting Cabinet Members could participate directly in the drafting and discussion of legislation.

There was a significant drift (at least in our intellectual circles) towards the British constitutional model after the Civil War.  Woodrow Wilson tried to import British practices into the United States (as a scholar and as President), and this proposal suggests that others were on this bandwagon.  I have other examples in mind, but let me save that for another post.

UPDATE:  Justice Story also endorsed this idea in his Commentaries on the Constitution.


Woodrow Wilson on Nominating Presidential Candidates

98px-President_Woodrow_Wilson_portrait_December_2_1912Another of my basic research projects is to read all of the Annual Messages/State of the Union Addresses of the Presidents.  In 1913, Woodrow Wilson broke with precedent by delivering his Annual Message as a speech to a Joint Session of Congress (as opposed to a written statement).  Here is a fascinating section of that speech:

I turn to a subject which I hope can be handled promptly and without serious controversy of any kind. I mean the method of selecting nominees for the Presidency of the United States. I feel confident that I do not misinterpret the wishes or the expectations of the country when I urge the prompt enactment of legislation which will provide for primary elections throughout the country at which the voters of the several parties may choose their nominees for the Presidency without the intervention of nominating conventions. I venture the suggestion that this legislation should provide for the retention of party conventions, but only for the purpose of declaring and accepting the verdict of the primaries and formulating the platforms of the parties; and I suggest that these conventions should consist not of delegates chosen for this single purpose, but of the nominees for Congress, the nominees for vacant seats in the Senate of the United States, the Senators whose terms have not yet closed, the national committees, and the candidates for the Presidency themselves, in order that platforms may be framed by those responsible to the people for carrying them into effect.

My main question about this is whether Wilson’s proposal would be constitutional.  Could Congress enact a law dictating who the delegates to the party conventions would be?  Could Congress require states to hold presidential primaries instead of caucuses?


Call For Presentations–“Slavery Past, Present, and Future”

Slavery Past, Present and Future

The Slavery Past, Present and Future Project: 1st Global Meeting

Tuesday 7th July – Thursday 9th July 2015
Mansfield College, Oxford, United Kingdom

It is an unfortunate truth that slavery, in one form or another, exists in almost all human societies. The 2014 United States State Department’s Trafficking in Persons Report, for example, claims that virtually every country in the world is now a source, transit, or destination point for human trafficking, which it describes as a “modern form of slavery.”

Is slavery an inevitable part of the human condition? Controversial estimates indicate that up to 35 million people worldwide are enslaved. This modern re-emergence of slavery following abolition over two hundred years ago, is said to be linked to the deepening interconnectedness of countries in the global economy, overpopulation, and the economic and other vulnerabilities of the individual victims and communities.

This conference will explore slavery in all its dimensions and, in particular, the ways in which we understand and attempt to respond to it.

Throughout history, slavery (the purchase and sale of human beings as chattel), enslavement (through conquest, and exploitation of indebtedness, among other vulnerabilities), and similar extreme forms of exploitation and control have been well documented.

Slightly more than two hundred years ago a hard fought consensus emerged regarding the evils and wrongness of human enslavement. (In 2007 the United Kingdom celebrated the 200th anniversary of its abolition of the trans-Atlantic trade in enslaved Africans. In 2008 the United States followed suit.) Yet, despite these historic triumphs, slavery continued in various forms.

For example, post “Emancipation” and “Abolition”:

Indian and Chinese natives were indentured into servitude on the plantations of Britain’s Caribbean and Pacific colonies
Pacific Islanders were “blackbirded” to enslavement on Australia’s Queensland sugar plantations
Native and imported Indian and Chinese laborers built the roads, railroads and other infrastructure of Britain’s African colonies
King Leopold’s Armies enslaved the natives of the Belgian Congo
Alarm about the enslavement of white women in the colonies and back alleys of European and US cities swept Europe and the United States in the late nineteenth and early twentieth centuries.
Share cropping, the Klu Klux Klan, and lynchings re-enslaved the descendants of African slaves in the United States
Child brides and their exploitation continued to be the cultural norm in many countries.
And today, the varieties of slavery are astonishing. Consider, for example, enslavement or mere “exploitation” among:

fishermen in Thailand’s booming shrimping industry,
children on Ghana’s cocoa plantations,
among immigrant farmworkers on U.S. farms,
prostituted women and girls on the streets and in the brothels of Las Vegas,
the dancing boys (bacha bazi) of Afghanistan,
the sex workers of The Netherlands’ Red Light Districts,
the listings of human “merchandise” in newspapers and online media throughout the world,
Syrian refugee girls and women in Jordan, Turkey, and Lebanon, and
the migrant workers from Southeast Asia who flock to the oil rich Gulf States for work.
Does this mean that the world may not have changed as much as we would like to believe since worldwide abolition and the recognition of universal individual and collective human rights? Like the ‘consumers’ of the past, are we dependent on the abhorrent exploitation of others?

Submissions to this conference are sought from people from all genders and walks of life, including academics (from multiple disciplines, such as art, anthropology, history, ethnic studies, politics, economics) and non-academics; social workers, activists, and health care professionals; government representatives and policy makers; former slaves and indentured laborers; members of at-risk populations such as migrant and guest workers, non—regularized immigrants, and refugees.

The following is a non-exhaustive list of potential themes:

– What is slavery – social, cultural, and legal definitions?
– Is human trafficking a modern form of slavery
– The experience of slavery (from the perspectives of slave, slave master, and society)
– The legacies of slavery in contemporary life: Power-subordination structures; Guilt (ancestral, descendant, survivors’, beneficiary’s) and its rejection; reparations
– Contemporary anti-trafficking and anti-slavery organizations, their missions, methodologies, and effectiveness
– Social, cultural, political, and economic structures that create and sustain slavery through space and time
– Enslavement and its effects on families and societies
– The perils and successes of rescue and rehabilitation; what are the risks of re-enslavement?
– Self-enslavement: can a human sell himself?
– Addiction as enslavement?
– Is enslavement gendered?
– The role of race, ethnicity and otherness
– Official commemorations and denials of and apologies for slavery
– Education and educating about slavery
– Experiencing enslavement through literature, visual and performance arts

The Steering Group welcomes the submission of proposals for short workshops, practitioner-based activities, performances, and pre-formed panels. We particularly welcome short film screenings; photographic essays; installations; interactive talks and alternative presentation styles that encourage engagement.

What to Send:
Proposals will also be considered on any related theme. 300 word proposals should be submitted by Friday 13th March 2015. If a proposal is accepted for the conference, a full draft paper of no more than 3000 words should be submitted by Friday 22nd May 2015. Proposals should be submitted simultaneously to both Organising Chairs; proposals may be in Word or RTF formats with the following information and in this order:

a) author(s), b) affiliation as you would like it to appear in programme, c) email address, d) title of proposal, e) body of proposal, f) up to 10 keywords.
E-mails should be entitled: Slavery 1 Proposal Submission.

All abstracts will be at least double blind peer reviewed. Please use plain text (Times Roman 12) and abstain from using footnotes and any special formatting, characters or emphasis (such as bold, italics or underline). We acknowledge receipt and answer to all proposals submitted. If you do not receive a reply from us in a week you should assume we did not receive your proposal; it might be lost in cyberspace! We suggest, then, to look for an alternative electronic route or resend.

Organising Chairs:
Karen E. Bravo:
Kari Winter:
Rob Fisher:

The conference is part of the Probing the Boundaries domain which aims to bring together people from different areas and interests to share ideas and explore innovative and challenging routes of intellectual and academic exploration. All proposals accepted for and presented at the conference must be in English and will be eligible for publication in an ISBN eBook. Selected proposals may be developed for publication in a themed hard copy volume(s). All publications from the conference will require editors, to be chosen from interested delegates from the conference.

Inter-Disciplinary.Net believes it is a mark of personal courtesy and professional respect to your colleagues that all delegates should attend for the full duration of the meeting. If you are unable to make this commitment, please do not submit an abstract for presentation.

Please note: Inter-Disciplinary.Net is a not-for-profit network and we are not in a position to be able to assist with conference travel or subsistence.


William Howard Taft on Voting Rights

92px-WhtaftPeriodically I like to do basic research in the hope that this generate new ideas and that I’ll learn something.  In addition to reading all of the party platforms (still working on that), I decided to read all of the presidential inaugural addresses.  One of the most interesting passages I’ve come across so far was in President Taft’s 1909 Inaugural.  This gives a clear (though unsettling) account of how people viewed race relations and suffrage at the time.

The consideration of this question can not, however, be complete and full without reference to the negro race, its progress and its present condition. The thirteenth amendment secured them freedom; the fourteenth amendment due process of law, protection of property, and the pursuit of happiness; and the fifteenth amendment attempted to secure the negro against any deprivation of the privilege to vote because he was a negro. The thirteenth and fourteenth amendments have been generally enforced and have secured the objects for which they are intended. While the fifteenth amendment has not been generally observed in the past, it ought to be observed, and the tendency of Southern legislation today is toward the enactment of electoral qualifications which shall square with that amendment. Of course, the mere adoption of a constitutional law is only one step in the right direction. It must be fairly and justly enforced as well. In time both will come. Hence it is clear to all that the domination of an ignorant, irresponsible element can be prevented by constitutional laws which shall exclude from voting both negroes and whites not having education or other qualifications thought to be necessary for a proper electorate. The danger of the control of an ignorant electorate has therefore passed. With this change, the interest which many of the Southern white citizens take in the welfare of the negroes has increased. The colored men must base their hope on the results of their own industry, self-restraint, thrift, and business success, as well as upon the aid and comfort and sympathy which they may receive from their white neighbors of the South.

There was a time when Northerners who sympathized with the negro in his necessary struggle for better conditions sought to give him the suffrage as a protection to enforce its exercise against the prevailing sentiment of the South. The movement proved to be a failure. What remains is the fifteenth amendment to the Constitution and the right to have statutes of States specifying qualifications for electors subjected to the test of compliance with that amendment. This is a great protection to the negro. It never will be repealed, and it never ought to be repealed. If it had not passed, it might be difficult now to adopt it; but with it in our fundamental law, the policy of Southern legislation must and will tend to obey it, and so long as the statutes of the States meet the test of this amendment and are not otherwise in conflict with the Constitution and laws of the United States, it is not the disposition or within the province of the Federal Government to interfere with the regulation by Southern States of their domestic affairs. There is in the South a stronger feeling than ever among the intelligent well-to-do, and influential element in favor of the industrial education of the negro and the encouragement of the race to make themselves useful members of the community. The progress which the negro has made in the last fifty years, from slavery, when its statistics are reviewed, is marvelous, and it furnishes every reason to hope that in the next twenty-five years a still greater improvement in his condition as a productive member of society, on the farm, and in the shop, and in other occupations may come.

The negroes are now Americans. Their ancestors came here years ago against their will, and this is their only country and their only flag. They have shown themselves anxious to live for it and to die for it. Encountering the race feeling against them, subjected at times to cruel injustice growing out of it, they may well have our profound sympathy and aid in the struggle they are making. We are charged with the sacred duty of making their path as smooth and easy as we can. Any recognition of their distinguished men, any appointment to office from among their number, is properly taken as an encouragement and an appreciation of their progress, and this just policy should be pursued when suitable occasion offers.

But it may well admit of doubt whether, in the case of any race, an appointment of one of their number to a local office in a community in which the race feeling is so widespread and acute as to interfere with the ease and facility with which the local government business can be done by the appointee is of sufficient benefit by way of encouragement to the race to outweigh the recurrence and increase of race feeling which such an appointment is likely to engender. Therefore the Executive, in recognizing the negro race by appointments, must exercise a careful discretion not thereby to do it more harm than good. On the other hand, we must be careful not to encourage the mere pretense of race feeling manufactured in the interest of individual political ambition.

Personally, I have not the slightest race prejudice or feeling, and recognition of its existence only awakens in my heart a deeper sympathy for those who have to bear it or suffer from it, and I question the wisdom of a policy which is likely to increase it. Meantime, if nothing is done to prevent it, a better feeling between the negroes and the whites in the South will continue to grow, and more and more of the white people will come to realize that the future of the South is to be much benefited by the industrial and intellectual progress of the negro. The exercise of political franchises by those of this race who are intelligent and well to do will be acquiesced in, and the right to vote will be withheld only from the ignorant and irresponsible of both races.


Rotating the Chief Justiceship

John G. Roberts Nominated To U.S. Supreme CourtI thought I’d pose a question as the Supreme Court swings back into action with its conference tomorrow.  Is there any legal barrier to making Chief Justice of the United States a title that rotates among the nine Justices?  In other words, could a different Justice be the Chief each Term, with each taking turns?

Why do this?  Basically, as a way of distributing the assignment and presiding powers.  By tradition the Chief Justice assigns an opinion when in the majority, with the Senior Associate Justice doing so if the Chief is in dissent.  Some appellate courts have used a rotating or random assignment system, and nothing stops the Justices from doing that tomorrow,  Even if they did, though, the power to preside would stay with the Chief (along with the various administrative powers given to that office).

The Constitution does not say that we must have a Chief Justice for life.  We must have a Chief Justice, and Article III judges must serve for life, but there is no such thing as a Chief Judge for life in the circuit or district courts.  Nonetheless, the vote in the Senate to confirm John Roberts was for the position of “Chief Justice of the United States.”  This could mean that only he can be the Chief Justice, but could he delegate to his colleagues and make them “Acting Chief Justice” if he so chose?  Furthermore, if the Senate and President refused to name a Chief Justice after Chief Justice Roberts resigns or dies (and simply name another Associate Justice), would that force the Court to adopt its own system (rotating, seniority, or whatever) to pick a Chief?

UPDATE:  Orin Kerr points to the relevant statutory authority in a comment. I wonder what the powers and duties of the Chief Justice are as defined by statute. (Presiding over a presidential impeachment is the only constitutional duty.)


Speaker of the House

Constitutional scholars often point out that there is no requirement in Article I that the Speaker of the House must be a member of that body.  Today we saw some votes for non-members, such as Colin Powell, Senator Rand Paul, and Senator Jeff Sessions.

Some crazy issues arise in this context.  Can a sitting Senator serve as the Speaker?  I suppose that there is no constitutional prohibition on that, though it would be hard to reconcile with the structural principle of bicameralism. What about making the President the Speaker?


Electoral College Reform

In reading the 2012 Republican Platform, I was surprised by this passage:

We oppose the National Popular Vote Interstate Compact or any other scheme to abolish or distort the procedures of the Electoral College. We recognize that an unconstitutional effort to impose “national popular vote” would be a mortal threat to our federal system and a guarantee of corruption as every ballot box in every state would become a chance to steal the presidency.

I did not realize that the GOP even had a position on this.   The constitutional analysis of this question is actually quite complicated, though there is no indication that enough states will join this initiative to present a justiciable case (if it is justiciable).  While I understand the reasoning behind support for the Electoral College, I think the last line about “corruption in every ballot box” is absurd.


A Patent Collective Rights Organization

There was an article in the Washington Post the other day discussing a plan by the founder of to create a collective rights organization for patents.  His contention was that patents in the United States are too hard too license, which leads to many innovations going unused and encourages patent troll litigation.

I hope his project succeeds, but I doubt that it will.  Unlike a successful CRO such as ASCAP, the complexity of running one for patents is exponentially greater.  Patents cover a vast range of subject matter and the value of many patents is hard to ascertain.  Songs, by contrast, are very similar to each other and can be administered through a reasonably predictable rate schedule.  One could imagine a CRO that focuses on a specific type of patent, but even that seems hard.

I’m not sure that we have too many unlicensed patents.  We just have too many patents, though the Supreme Court’s decision in Alice Corp. has significantly limited software patents.