Author: Gerard Magliocca


Net Neutrality

Today the FCC voted to classify the Internet as a public utility and enforce net neutrality.  Kudos to Tim Wu (disclosure–I’ve known Tim for a long time).  Rarely has an academic had such a significant impact on public policy.  Congress may tinker with the regulatory framework in the coming years, but I suspect that the principle of net neutrality will remain a part of that framework.


There Are Many Fish in the Sea

For those of you who enjoy statutory interpretation, the Supreme Court’s long-awaited “discarded fish” opinion came out this morning.  Justice Kagan’s dissent probably marks the first Supreme Court reference to Mad Libs.


Committees in the Constitutional Convention

In reading David Stewart’s excellent new book on James Madison, I was surprised to learn that we have no idea why certain delegates to the Constitutional Convention served on some of the ad-hoc committees and not others. This fact is tucked into the Acknowledgements, which shows why should you read everything in a book (including endnotes) carefully.

Madison’s Notes simply name the people who serve on a given committee without explaining the process used to select the members.  Maybe this was a purely voluntary process, but maybe with some diligence another pattern can be discovered if one examines all of the committee assignments.


Who are “the people?”

My previous post said that some courts have held that the Second Amendment does not apply to illegal aliens in part because they are not part of “the people” described in the Constitution.  Why should we think that “the people” is a term of art rather than just a plural for person?

Here’s how the Supreme Court explained this in United States v. Verdugo-Urquidez:

The Preamble declares that the Constitution is ordained and established by “the People of the United States.” The Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.” See also U.S. Const., Amdt. 1 (“Congress shall make no law … abridging … the right of the people peaceably to assemble”); Art. I, § 2, cl. 1 (“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States”). While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292, 24 S.Ct. 719, 723, 48 L.Ed. 979 (1904) (Excludable alien is not entitled to First Amendment rights, because “[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law”). The language of these Amendments contrasts with the words “person” and “ accused” used in the Fifth and Sixth Amendments regulating procedure in criminal cases.

If we go back further, Dred Scott said that “the words ‘people of the United States’ and ‘citizens’ are synonymous terms.”  As far as I know, this was the first judicial statement on the issue, but this cannot be the only definition of “the people” in the Constitution, as that would mean legal aliens are not protected by the Second or the Fourth Amendment.  On the other hand, legal aliens do not vote for members of the House of Representatives, which would support the narrower view of what “the people” are. Note that the definition given in Verdugo-Urquidez (and repeated in Heller) does not cite any Founding-era materials.

Here is one last conundrum.  In incorporating the Second and Fourth Amendments, the Court held that these rights are fundamental, implicit in the concept of ordered liberty, etc.  If so, how can they not apply to illegal aliens?  Are there two kinds of fundamental rights?  Some apply to illegal aliens (say free exercise of religion) and some do not?  Perhaps one should say that any incorporated right applies to everyone, whereas unincorporated rights do not.


Illegal Immigrants and the Bill of Rights

My next article is going to analyze the application of the Bill of Rights to illegal immigrants.  Some circuit courts have held (drawing in part on language in Heller) that the Second Amendment does not apply to them.  The Supreme Court has expressly reserved the issue of whether the Fourth Amendment applies to them.  These are important questions that I would like to address in a series of posts.

Here is the basic problem.  There are parts of the Bill of Rights that clearly apply to all persons.  (The Fifth Amendment’s protections for grand jury indictment, double jeopardy, self-incrimination, and due process.)  Other parts use definitions that are defined in terms that can apply to any person.  The Sixth Amendment refers to “the accused,” the Third Amendment refers to “any house,” and the Seventh Amendment refers to “suits at common law.”  Still other parts make general statements that cannot be limited to only some (The Eighth Amendment and most of the First Amendment).

Other parts of the Bill of Rights, though, that use the term “the people” to refer to the right in question.  (The Second, Fourth, Ninth, and Tenth Amendments, along with the Assembly and Petition Clauses of the First Amendment.)  The Supreme Court has said (more than once) that this term is not just the plural of person.  Instead, “the people” refers to the American political community and thus arguably excludes illegal aliens.  If this interpretation is correct, then there are two tiers of rights in the Bill of Rights.  In the Fourteenth Amendment, of course, there are two tiers of rights (privileges or immunities for citizens, due process and equal protection for everyone).  But is this reading of “the people” right?  I’ll take that up in another post.

This is just one piece of the puzzle.  Consider also that the Amendments that use “the people” have been incorporated through the Due Process Clause of the Fourteenth Amendment, which uses the term person.  Does this mean that the rights in the states are broader in scope than as against the National Government? If not, why?  Here’s another.  Does “the people” mean the same thing in each amendment that uses it?  Can you distinguish, say, the Fourth Amendment from the Second?  How does this relate to “We the People” in the Preamble?  And what about the Ninth Amendment?  Are some people entitled to unwritten rights but not others?  More to come.


George H.W. Bush on the Bill of Rights

George_H._W._Bush,_President_of_the_United_States,_official_portraitIn my draft article on the Bill of Rights, I make a big deal about the sesquicentennial of the ratification of the first set of amendments in December 1941.  Now that I’m working on a book, I’ve been looking at the bicentennial in 1991.  One notable part of that celebration was a speech by President Bush 41 marking the occasion at Montpelier, James Madison’s estate in Virginia.

What I find interesting about this speech is that it gives a Reagan Revolution/1980s conservative take on the Bill of Rights that you don’t see elsewhere.  (This is also the only presidential address in recent decades that focuses on the Bill of Rights.)  Consider this passage:

[The Framers] gave us not a declaration of rights but a Bill of Rights, not a piece of propaganda but a set of legally enforceable constraints on government.  Most important, they drafted a Bill of Rights that reflected the higher nature and the aspirations of the American people, a bill that grew out of the American character, not one grafted onto it for the sake of some abstract theory.

There’s a lesson in this for today’s writers of national constitutions and international treaties, some of whom are with us today.  Today, one often hears the concept of rights attached to specific social services or material standards of living.  The framers, however, did not elevate acquisition of even the most vital goods and services to the status of rights.  They trusted people to make the most of their liberty and to respond to the challenge of assuming responsibility for themselves, their families, their communities, and their government.  And they understood that paternalism is just a sugar-coated tyranny.

Another insight from Bush’s speech is the way in which he discussed the Second and Third Amendments:  “The protections of personal rights, the safeguard against arbitrary actions of the military against private property, and the guarantee of the right to keep and bear arms have enhanced the public’s respect for our law enforcement and military authorities.”  He also talks at some length about the Takings Clause, the Tenth Amendment, and property rights.  You can find the whole thing here.



Certiorari Denials

Over on Balkinization, I wrote a post suggesting that the Justices adopt a practice of publicly noting the votes on each certiorari petition.  Since then, I’ve done some research that adds some context to that issue.

It appears that no Justice publicly dissented from a certiorari decision until 1950.  Justice Frankfurter was the first to do so, and he argued that noting dissents from every denial would be unwise because that would not convey any useful information.  In any given case, there could be many reasons for refusing to grant certiorari, thus doing so without an explanation would not tell you much, if anything.  In 1976, Justice Stevens argued (in what was in effect a concurrence to a cert denial), that noting cert dissents was a bad idea because it would breach the confidentiality of those discussions and thus hurt their quality.

I’m not persuaded by either of these explanations.  Sure a vote for or against certiorari (without more) is ambiguous, but does it really tell us nothing helpful?  And would the Justices really discuss the petitions differently if the votes were disclosed?  Now they might vote differently, but I’m not sure that the way they vote now is better in any meaningful way.

Now it is true that disclosure of this information may not be as high a priority as, say, getting oral arguments televised.  Fair enough.  But I still think (in a tentative way) that disclosure of certiorari votes would be a better practice.


Charge of the Light Brigade

If you were the lawyer given the task of defending the same-sex marriage bans in the Supreme Court, how would you approach the oral argument given that you are certain to lose?  In almost every other case there is at least the possibility (however slim) of winning.  Here, though, the Court’s treatment of the certiorari petitions and the stay requests makes the final outcome clear enough.

Do you treat the argument as a ceremony and perform your part?  Do you go down guns blazing?  Do you find some way to protest?  (It would be possible, for example, to imagine someone just saying “We stand on our brief” and sitting down.  I wonder if that’s ever happened in the Supreme Court.)  It’s an odd situation.


Chief Justice Roy Moore is a Clown

I suppose this goes without saying, but his so-called order to the probate judges of Alabama that they should not issue marriage licenses to same-sex couples is absurd.  I hope that any couple that could not marry today (as ordered by the Federal District Court and not stayed by any other federal court) sues him and the relevant probate judge for damages under Section 1983 (preferably before the same federal district judges that issued the same-sex marriage opinion).

Personally, I think that the Supreme Court should have granted certiorari in the Fall and stayed all of the lower court opinions until ruling on the merits.  At this point, though, the train has left the station.  (Go read Justice Thomas’s dissent from the stay denial today to see what that looks like.)  Why stay a ruling that you know you will affirm in June, I suppose.


Driving is Not a Right: It’s a Privilege

This is a common phrase that deserves more attention.  I don’t where the idea came from originally, though most state DMVs and driving test manuals include something like that statement.  I find the expression interesting for a couple of reasons.

1.  The terms “right” and “privilege” were used interchangeably for most of our history.  Even now, that is often the case.  Take the privilege against self-incrimination or the Privileges or Immunities Clause of the Fourteenth Amendment.  Many people, though, now think that there is a difference between those things as a result of this phrase.

2.  How is driving different from entitlements?  The state can charge drivers a fee for licenses, which is not true for a fundamental right like voting.  If states waive license fees for the indigent, though, then a driver’s license is not different from many other rights. (I don’t know how many states do this.)  Another thought, of course, is that you have to pass a written and road test to drive.  How many people never manage to pass those though?  Probably very few.  If the driver’s test was like the bar exam, that would be one thing.  Otherwise, the test does not seem like much of a practical barrier on driving.