Author: Gerard Magliocca


Justice Kennedy’s Papers

The Justice has replied (through the Court’s public information office) that he has no details to announce yet on the disposition of his papers.  I’m not sure whether I will get any more replies to my letters, but we’ll see what happens after the end of June.

Blogging is light because I have paper edits that are pressing.  Next week I should be back guns blazing.



Why Do We Have Bicameralism?

A key structural feature of Article One is bicameralism.  Why is Congress set up in this way?  There are many possible answers.  First, Congress was modeled on Parliament, which had two chambers–Lords and Commons.  Second, splitting Congress into two parts allowed the Framers to reach a compromise on the issue of representation (one house directly elected and one for states).  Third, dividing Congress was a way of creating an internal check on the legislative branch.

Let’s think about this last reason for a moment.  Why should Congress be internally divided while the Executive Branch and the Supreme Court are not?  Madison’s answer to this (in Federalist #51) was that Congress was the most powerful branch, so an internal check was essential.  Did this mean that as divided Congress was now coequal to the other branches?  Of course not.  A division just made it less likely that Congress would exercise its superior power.  The upshot being that bicameralism is further evidence that the three branches are not coequal.

As Orin pointed out in a comment to my prior post, though, it is far from clear what consequence should follow from the observation that the branches are not coequal.  I hope to elaborate on that in a post next week.  In the meantime, Happy Memorial Day Weekend!


A Presumption in Favor of Congress

I’ve posted twice about the thought that the Constitution does not make the three branches equal.  In fact, the text and the original understanding created Congress as the superior branch.  Only much later (starting with Andrew Jackson) was there a notion that the three branches were co-equal, and this did not become a widely held view until long after ratification.

Well, so what?  The answer is that when courts decide a separation-of-powers questions, there should be a presumption that Congress prevails.  In other words, Justice Jackson’s concurrence in Youngstown is wrong.  When we are in a “zone of twilight” where no legislation speaks to whether a certain power rests with Congress or the President, those claims should not be in equipoise.

Would a presumption in favor of Congress have made a difference in prior separation-of-powers cases?  That I’m less sure about, as I need to work my way through the opinions.


The Dormant Commerce Clause

Today’s opinion in Comptroller v. Wynne produced two dissenting opinions (one from Justice Scalia and one from Justice Thomas) arguing that the Dormant Commerce Clause should be repudiated.  (Justice Scalia makes some allowance for stare decisis in that context, but not much.)

I think there is a lot to be said in favor the view that the Dormant Commerce Clause is a doctrine that rests on weak or poorly-reasoned foundations.  In practical terms, I suppose the question is would Congress adequately police state economic discrimination against other states if the Court stopped doing that?  One can think of cases where a state’s regulations might prompt federal preemption, but most of the time you would think that Congress would dismiss the issue as insubstantial.  Perhaps the power to address this could be delegated to an agency, and the same issues now addressed under the Dormant Commerce Clause would become administrative law matters subject to only “arbitrary and capricious” review in the courts.  That might be a better approach, come to think of it.


Three Co-Equal Branches?

Now that I’m interested in this question, I’m probing to see where the idea that the three branches are equal comes from.  As far as I can tell, the first reference to that idea comes in President Andrew Jackson’s 1834 Protest to the Censure Resolution, which I spent a good deal of time discussing in my first book.  In making the case for executive power, Jackson asserted that each of the three branches “is the co-equal of the other two.”  (Congress, of course, argued at the time that this was not the case.)

The first clear reference to co-equal branches by the Supreme Court is in Field v. Clark, an 1892 case holding that the Court must defer to Congress’s assertion that a law was duly enacted (in other words, the Court will not look behind the existence of an enrolled bill).  In that case, the Court stated:  “The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed congress, all bills authenticated in the manner stated; leaving the courts to determine, when the question properly arises, whether the act so authenticated, is in conformity with the constitution.”  The result in Field, though, is just as consistent with a claim of congressional superiority.  There is also language from some taxpayer standing cases (until Flast v. Cohen), saying there is no such standing and thus the Court cannot review appropriations by a “co-equal” branch, but again co-equal does no work for that analysis.

From what I see, the idea that there are three co-equal branches really did not take hold until Watergate.  The Court mentions the point in United States v. Nixon, and President Ford made the same observation in his speech to Congress immediately following Nixon’s resignation. At this point, though, coequality was a device to limit the Executive Branch rather than enhance it.

Why does this matter?  I’ll tell you next week.


The First Branch

In this post I want to start a discussion of an observation made about twenty years ago by Garry Wills.  Wills is one of my favorite authors, and a significant portion of his scholarship is devoted to the Constitution.  Here is the claim:  The three branches are not co-equal.  As a textual and as an original matter, Congress is the preeminent branch.  How do we know this?

1.  Congress is discussed first (Article I).

2.  Article I is the longest and most detailed of the articles.

3.  Congress wields the power of impeachment over the other two branches.  The other two branches cannot, by contrast, remove a member of Congress.

4.  Congress controls (albeit with some limitations) the salaries and staff of the other two branches.  They, though, cannot control Congress’s pay and staff.

5.  Congress can override a presidential veto.  He has no recourse if that happens.

These are just some of Wills’ examples.  Now the obvious response is that many of these points are formalistic.  In practice, the President or the Supreme Court is more powerful because Congress does not wield many of its weapons, can’t act in a unified way, and so on.  True enough, but how relevant is that for a court addressing a separation-of-powers question such as Zitovsky?  If you start with the premise that the constitutional text made Congress the leading branch, then shouldn’t that usually outweigh subsequent practice if you’re an originalist or a structuralist?

Anyway, I’ll have more to say about this next week.




The Wright Brothers and the Patent System

240px-Kitty_hawk_grossI just finished David McCullough’s new book on the Wright Brothers.  While McCullough is a wonderful storyteller, he does tend to paint a rosy picture of his biographical subjects.  John Adams, in particular, came off much better than he looks if you read the accounts of his contemporaries.

I think that the same is true in this book.  The narrative ends in 1909 with the Wright Brothers winning acclaim around the world.  There is an Epilogue that describes what happened afterwards, but what that leaves out is the fact that the Wrights (and then only Orville after Wilbur died in 1912) spent the next several years engaged in patent litigation.  From the secondary literature on that part of the story, one gets the impression that the Wrights were prickly about asserting their originality in achieving flight and were not that open to collaboration.  This helps explain why the United States fell behind Europe in aeronautics, which the government addressed in 1917 by creating (or coercing) a patent pool for airplanes.  It’s a cautionary tale for patents and their relationship to innovation.


Thoughts on the British Election

The Tory victory in Thursday’s election raises several points that are worth discussing in the UK context and globally.

1.  The British constitutional system is gradually moving towards a parliamentary/direct democracy hybrid.  Referenda are now increasingly seen as necessary or desirable to resolve major issues.  There was a referendum about proportional representation in 2011, another on Scottish independence last year, and now one is promised in 2017 on EU membership.  Parliamentary sovereignty remains, but in more formal terms.

2.  More Scottish autonomy is inevitable, as Scotland now looks more like Quebec (a region with its own culture and own political party within a larger state).  I wonder what this will mean for Scottish law.  Scottish law still possess some unique characteristics, and there are many attributes of that law that influenced the Framers and resonate today.  (I’ve always thought “Not Proved” should be a possible verdict in a criminal case, for instance.)  How would a more autonomous Scottish law develop?  Would, for example, Scotland end up with a written constitution?


The Lost Art of Alternative Holdings

In the discussion of the same-sex marriage cases, there is a lively argument ongoing about whether the Court should use sexual orientation or sex as the basis for its decision.  Maybe same-sex marriage bans discriminate on the basis of sex and cannot survive heightened scrutiny.  Maybe the real issue is that these bans irrationally discriminate against people based on their sexual orientation.

I’m not sure why these cannot both be included in the Court’s opinion (assuming you could get five votes for each).  Loving said that interracial marriage bans violated the Equal Protection Clause (as a discrimination based on race) and the fundamental right to marry.  It is fair to say that we now think of Loving primarily as a race case, but that was not the only basis for the decision.

Alternative holdings are more confusing than a single holding, of course, but in this instance I would argue that two holdings would be superior to only the sex discrimination rationale, in part because the latter leaves open the constitutionality of laws discriminating on the basis of sexual orientation.


Theodore Roosevelt and the Bill of Rights

98px-Theodore_Roosevelt_laughingI’m working away on my next book (The Heart of the Constitution:  How the Bill of Rights Became the Bill of Rights) and I’ve come across something that I want to share.

In 1912, Teddy Roosevelt challenged President William Howard Taft for the Republican nomination.  As part of his campaign, TR came out in support of permitting voters to recall state judicial decisions.  This proposal was greeted with alarm by legal elites and party conservatives, and they responded by accusing Roosevelt of jeopardizing the Bill of Rights.

For example, New York’s Republican convention, which backed President Taft, issued a resolution stating: “We believe that the guarantees of the Bill of Rights, as incorporated in the Constitution of the United States for the protection of each citizen, even if threatened by a temporary majority, shall be forever preserved.”  Elihu Root, who also backed Taft, delivered the Keynote Address at the Republican National Convention and said that the recall of decisions was dangerous because “[t]he prohibitions of the Bill of Rights, which protect liberty and insure justice, cannot be enforced except through the determinations of an independent and courageous judiciary.”  When a bitterly divided Convention chose Taft as its standard bearer, the President issued a statement to The New York Times arguing that the result was a defeat for those who wanted “to weaken the constitutional guaranties of life, liberty, and property, and all other rights declared sacred in the Bill of Rights, by abandoning the principle of absolute independence of the judiciary essential to the maintenance of those rights.”

This is an interesting episode for a couple of reasons.  First, at this time it was still not common for people to call the first set of amendments the Bill of Rights.  When that did occur, there was usually some overarching political purpose to the designation.  John Bingham, for instance, called the 1791 amendments the bill of rights because he wanted them extended to the states.  In 1912, the reason was that accusing TR of threatening the Bill of Rights was a useful political tactic.

Nevertheless, the charge was almost entirely empty rhetoric.  Consider that in 1912 the only part of the Bill of Rights that applied to the states was the Takings Clause.  Thus, how could permitting the recall of state court decisions hurt the Bill of Rights?  Moreover, the state decisions that motivated TR to endorse recall involved the Due Process Clause of the Fourteenth Amendment (for instance, Ives v. South Buffalo R.R. Co.), and not the Bill of Rights.  In this case, the Bill of Rights was a symbol (and a potent one) for the rule of law.