Author: Gerard Magliocca


Boycotts by One State Against Another

During the recent controversy over Indiana’s RFRA, some states banned non-essential travel by state employees to Indiana.  (What would constitute essential travel to Indiana was left unsaid.)  This got me thinking about whether there are any constitutional limits on a state–acting as a market participant–boycotting another state.

An example of a state’s broad authority to discriminate in favor of its residents is that tuition charged to in-state students can be lower than for out-of-state students.  Suppose, though, that a state said: “We will not admit any students from State Y to state universities because of State Y’s policy on something.”  Could this be done?  Maybe this would flunk rational basis review, but one could say in favor of rationality that a state wants to express its outrage at State Y’s policy.  The Dormant Commerce Clause is not at issue because the state is acting as a market-participant rather than as a regulator.  Is there a Privilege or Immunities Clause claim here?  Maybe, but why?


A New Maritime Law Agency

120px-Oregon_-_sinking_-_Currier&Ives_(1883)One frustration of teaching Admiralty is that much of the law governing ships is obsolete.  Some of the foundational statutes include the Limitation of Liability Act (1851) and the Jones Act (1920), which have been widely criticized as out of date.  Though the federal courts have broad common lawmaking power in this area, many of the Supreme Court’s decisions also rest on legal and factual assumptions that are faulty. (I might give some examples in a subsequent post.)

Why is this the case?  Part of the answer is that admiralty is not a priority for either Congress or the Court.  The decline of maritime commerce (in relative terms) explains this, though there is also some contingency at work.  The BP oil spill from 2010 exposed many flaws in the regulatory regime, but the Administration’s decision to develop a one-off remedy via a compensation fund rather than seeking a legislative response to the crisis kept everything frozen in amber.

Another answer is that maritime law missed out on the administrative law revolution of the 1930s.  There is a Federal Maritime Commission (an early version of which was run by Joseph Kennedy), but the FMC’s  jurisdiction is narrow.  Administrative agencies, of course, play a crucial role in updating statutes (with the help of Chevron deference) and raise the profile of problems with current law.  It is difficult to imagine environmental law without the EPA or communications law without the FCC (consider net neutrality as an example).  It’s probably time for Congress to make the Federal Maritime Commission a full-fledged agency.


Mrs. Murphy’s Wedding Services

The recent discussion about the Indiana RFRA brings to mind the “Mrs. Murphy’s Boarding House” hypothetical that was debated when the Civil Rights Act of 1964 and the Fair Housing Act of 1968 were enacted.  Mrs. Murphy was supposed to be an old lady who took boarders in her home.  The argument was that someone like that should not be required to take in boarders that she did not want in her home, even if her reason was racial bigotry.  Ultimately, the Fair Housing Act did exempt this sort of person and that  compromise that remains the law.

The argument is now being made that a provider of wedding services (a caterer, florist, photographer, or wedding planner) should not be required to work on a same-sex marriage if he or she objects on religious grounds.  Is this Mrs. Murphy comparable to the 1960s version?  I would say no.  The boarding house example includes a home and a business, and thus one might conclude that there is some privacy interest at stake.  The wedding scenario, by contrast, only involves a business and thus does not seem to warrant an exception from a non-discrimination provision based on sexual orientation.  (If there is no such provision, then the wedding planner is free to discriminate against same-sex weddings, I suppose.)

Nevertheless, I’m left wondering about the practical effect of this modern Mrs. Murphy.  Suppose a wedding provider says on its website, brochures, or in person that they think same-sex relationships are wrong but that they will comply with state law and work on same-sex weddings upon request.  How many same-sex couples are going to want their photos, flowers, cake, etc to come from someone who thinks that their marriage is sinful, unconstitutional, etc?  Not many, I would think.  So is there really a problem here?


John Bingham on “the People”

101px-John_Bingham_-_Brady-HandyI’ve posted previously about cases holding that illegal aliens are not included in the Second Amendment, in part because “the people” mentioned in that provision should be read as a term of art that means “people who are lawfully in the United States.”  It turns out that John Bingham was a forceful proponent of the idea that “the people” was not just the plural of “person” for constitutional purposes.

In arguing against the admission of the Oregon Territory as a state, Bingham stated that the Oregon Constitution was invalid because it allowed some legal aliens to vote.  He said that this was inconsistent with Article I’s use of the term “the people of the several states.”  In his view, “the people” meant only citizens.  While some states at the time did let aliens vote, he maintained that this was unconstitutional (and represented the only constitutional limit on state authority over who was eligible to vote).  He then went on to say that when a right was fundamental the Constitution used the term “person” or something else (not “the people”) to make that point.

Bingham’s comments on this point can be found at Cong. Globe. 35th Cong, 2d Sess., 982-84 (1858).  Or you can find them in my book.  Of course, Bingham did not discuss a distinction between legal and illegal aliens, as there were virtually no illegal aliens then, but one could say that the current interpretation of “the people” is at least trying to be faithful to the original view.


JFK on the Bill of Rights

John_F._Kennedy,_White_House_photo_portrait,_looking_upI’ve come across something that I thought I’d share.  In November 1963, President Kennedy filmed a short message that was to be aired in movie theaters on Bill of Rights Day.  Sadly, he was killed before that, and the film was never shown.  Here is a transcript of what he said:

I am grateful to the Motion Picture industry for this opportunity to remind you of a most important day in our lives:  December 15th is Bill of Rights Day.

The Bill of Rights are the first ten amendments to the American Constitution.  After the Constitution was written, it was felt that the while this was an extraordinary document, it did not provide the kind of guarantees for our individual liberties that a free country required.  And therefore under the leadership of James Madison, the first ten amendments were adopted to the Constitution.  We call them the Bill of Rights.

Because of the first ten amendments to the Constitution, because of the Bill of Rights, we are guaranteed freedom of speech, freedom of religion, freedom of the press, the right of assembly and petition, the right of trial by jury, the right to be secure in one’s home, the protection of due process of law and private property and public trials, and many other things that perhaps we take for granted which are guarantied in the United States Constitution.

So December 15th is an important day.  The Bill of Rights is vital in our lives.  Even though the parchment of the Constitution of the United States and the Bill of Rights is old and fading in the Archives Building here in Washington, nevertheless this document, the Bill of Rights, has meaning in all of our lives everyday.  We owe a good deal to it.  I think it is appropriate that we be reminded of our blessings and those who made them possible.  Remind our children of what a great country we have, how much it has been through, what it means to them; remind our servicemen, one million of them who serve overseas, that they do not defend merely a piece of geography but also a way of life expressed in the American Constitution, expressed in the Bill of Rights, expressed in the freedoms that we all enjoy.


Justice Jackson’s Error

97px-RoberthjacksonA subject that came up in my Bill of Rights seminar this semester is the fallacy that the rights included in the First Amendment were the most important ones because    . . . well, they came first.  Of course, this is wrong.  The First Amendment proposed by Congress to the states concerned the structure of the House of Representatives.  Our First Amendment was third in that list.

I think that the “First Amendment was first” error was first made by Justice Robert Jackson, who was a brilliant writer but not the most careful one.  Dissenting in Everson v. Board of Education, Justice Jackson said that religious “freedom was first in the Bill of Rights because it was first in the forefathers’ minds; it was set forth in absolute terms, and its strength is its rigidity.”  I’m looking for other examples though.



The Indiana Religious Freedom Restoration Act

My adopted home state is getting a lot of criticism for enacting a state version of RFRA.  I’m not sure why.

The concern is that the statute will authorize many businesses to refuse service to gays and lesbians.  As far as I know, though, no case construing the federal version of RFRA or the other state versions has held that this fact-pattern is covered.  Now is such an interpretation possible?  Yes.  Do some of the legislators who supported this statute in Indiana want that interpretation to be the law?  Probably.  My only point, though, is that there’s nothing special about Indiana’s statute as compared to the one enacted by Congress in 1993 or by many other states, and none of them (so far) authorize discrimination based on sexual orientation.



Griswold and the Bill of Rights

93px-WilliamodouglasThis is the 50th anniversary of Griswold v. Connecticut, and I’ve been thinking about the case as part of my research on the Bill of Rights.  As I’ve mentioned in prior posts, Griswold is the only Supreme Court opinion that reads the first set of amendments holistically (“emanations” and “penumbras”), and Justice Douglas’s opinion makes some other statements about the Bill of Rights that have proved quite influential.

Let’s start with the holistic point.  When the Court was issuing its liberty of contract cases from the 1890s until the 1930s, here’s what was not said:  “The liberty of contract can be derived from various guarantees in the Bill of Rights.  The Takings Clause protects property from expropriation without just compensation.  The Second Amendment protects our right to contract to buy guns.  The Third Amendment protects the home from a coerced rental of a room to a soldier.  The Fourth Amendment protects papers (including contracts) from unreasonable searches and seizures.  And then there is the Ninth Amendment.”

Why did the Court not approach the liberty of contract in this way?  One reason is that there was no idea then that the first set of amendments should be read together or were special.  Second, none of these rights (except for Takings) applied to the states, thus to use them to support an unwritten right that would bind the states would have been odd.  The holistic reading in Griswold, in other words, was the product of the growth in the importance of the Bill of Rights by 1965 and the related success of incorporation.

Next, Griswold settled the longstanding debate about whether the Ninth Amendment was in the Bill of Rights.  You can find several Supreme Court opinions before this that define the Bill of Rights as the first eight amendments.  But Griswold says quite clearly that the Ninth is part of the holistic reading, and since then the Court has not revived the “first eight amendments” definition.

Finally, Griswold introduced the idea that rights or structural protections that predate the Bill of Rights must be really important because they are “older than the Bill of Rights.”  This trope has appeared in many opinions since 1965, though I’m still researching that point.

More on the Bill of Rights tomorrow . . .


Stanton Biography

When I was working on my Bingham book, I remarked that we could use a new biography of Edwin M. Stanton, Lincoln’s principal Secretary of War and a leading figure during Reconstruction.  I learned the other days that a new biography of Stanton will come out next month.  I can’t vouch for this one yet (I’ve just pre-ordered), but Civil War buffs may find this irresistible.

UPDATE:  Unfortunately, I’ve now read this book and it’s quite terrible.  Sorry if you bought it based on my  initial post.


The 800th Anniversary of Magna Carta

Next month marks the 800th anniversary of Magna Carta.  To celebrate that occasion, we will have three guest posts on April 15th by Renee Lerner (George Washington University Law School), Joyce Malcolm (George Mason University Law School), and Thomas McSweeney (William and Mary Law School).  We look forward to their posts.