Author: Gerard Magliocca


Declarations vs. Bills of Rights

There are many famous Declarations of Rights.  The Universal Declaration of Human Rights of 1948, the French Declaration of the Rights of Man of 1789, the Virginia Declaration of Rights of 1776, and the English Declaration of Rights in 1689.  Other canonical texts, most notably the first set of constitutional amendments, are described as bills of rights.  What is the difference?

In the modern era the answer seems to be that declarations of rights are aspirational (at least in significant part) while bills of rights are concrete.  In 1991, President Bush stated during the bicentennial of the Bill of Rights that the Framers were practical men who “gave us not a declaration but a Bill of Rights, not a piece of propaganda but a set of legally enforceable constraints on government.” And Mary Ann Glendon’s book on the drafting of the Universal Declaration explains that the authors of that document tended to refer to their work as an “international bill of rights” until they started adding aspirational language, at which point they began calling the draft a “declaration.”

Now this was not the basis of the original distinction between a Declaration and a Bill of Rights.  In 1689, the English Declaration was given that title because that text was the product of a illegal Parliament (sitting without a King). The Bill of Rights of that same year was a duly enacted statute (after William was crowned).

By the Founding-era, though, this distinction was irrelevant.  People used the two terms interchangeably, and some states called its list a “declaration of rights” while some said “bill of rights” even though they looked the same.  This rhetoric continued into the late 19th century, but by 1900 “bill of rights” became the favored term.

Why was that?  I’m not sure, but the answer may be that the Declaration of Independence became THE Declaration for Americans such that calling anything else a Declaration of Rights would have seemed strange.  The Declaration of Independence, of course, was aspirational, which may have led people to view other declarations in that way.

Anyway, food for thought.


The First Congress on How To Amend

I’ve posted previously about the fact that the First Congress debated whether the first set of amendments should be interwoven into the document or listed at the end.  I’ve been reading that discussion as part of writing the new book, and I thought I’d say more about it.

Madison and the other proponents of revising the 1787 text directly made the argument that this would make the Constitution easier to understand.  As Madison said, to do otherwise would mean that the text could only be divined by a comparison of the two instruments, “which will be a very considerable embarrassment.”  It was also noted that the state ratifying conventions that wanted amendments desired that they be written into the text directly.

What were the arguments on the other side?  One was that statutory enactments (whether in the states or in England) typically were just supplements to what was enacted previously.  Sometimes a law did repeal or revise the text of a prior enactment, but often they did not. The response to this was that these practices were irrelevant for a written constitution, and the state constitutions were so new that they had never been amended (just entirely rewritten).

Other arguments for supplementation included: (1) the Constitution was ratified by state conventions, while the amendments would be ratified by state legislatures (though others disputed that this made any difference); (2) incorporating the amendments directly would confuse people by suggesting that the delegates in Philadelphia signed the amended constitution; (3) Article Five only authorized amendments rather than the writing of a new constitution.

We do not know why the House of Representatives made its choice.  The motion to list the amendments as a Supplement was voted down initially, but later passed because (according to a letter by Madison) that was necessary to secure a few votes for the two-thirds needed to pass the entire package.  More on the consequences later.




Conscientious Objections to Following the Law

There is one aspect of the Kim Davis situation that is not getting enough attention.  Let’s suppose that you think that officials like her should be given an exemption from following a law that they think is very wrong on religious grounds. Wouldn’t that mean that religious people would be less likely to get elected or chosen for public office?

Under the exemption scenario, the public or the appointing official would have every right to inquire about the religious beliefs of the candidate or applicant.  Now, of course, a candidate could say “My religious views would not affect my public duties” or “I will always follow the law.”  But people might not believe these statements, or just may be less inclined to take a chance on openly religious people.  Thus, I would think that creating or extending such an exemption would actually harm religious folks who want to serve.



No Questions Asked

GutmanCairoMaltFalc1941TrailerIn going through what happened to the original parchments of the Bill of Rights, I’ve come across another oddity that I’d like to share.

The Library of Congress and the New York Public Library both hold originals from 1789.  The LOC purchased its version from a manuscript dealer in 1943, and the New York Public Library acquired its copy somewhat earlier.

Where did they come from?  There were 14 copies made and signed by the relevant congressional officials (such as John Adams and the Speaker of the House).  The one now in the National Archives was the copy retained by the Federal Government, and one was sent to each state.  Some of those copies went missing or were destroyed.

Doesn’t this mean that the copies in the LOC and in the NY Library are two of those missing state versions?  Don’t they belong to the states to which they were originally sent?  Put another way, aren’t these copies stolen property?  Not so, they say.  The theory of both institutions is that the clerk in the First Congress made some “extra” copies and that these are what they have.

The trouble is that there is no evidence that any extra copies were made.  Indeed, when the Library of Congress bought its version in 1943, it was from a dealer who (like Peter Lorre in The Maltese Falcoln) went with the thought that “No questions will be asked” about its origins.  Perhaps there is no way of proving which state each copy came from, but an expert might be able to figure that out.


Stealing the Bill of Rights

I wanted to share a story about the Bill of Rights that I had not heard  before, though perhaps some of you have.

In 1789, each state was sent a copy of the 12 amendments proposed by Congress. The one sent to North Carolina, though, was stolen by a Union soldier at the end of the Civil War.  He returned to Ohio and sold it to a man named Charles Shotwell for $5.  (Shotwell may have been related to the Shotwells of Cadiz who knew John Bingham, but I’m not sure).  Shotwell moved to Indianapolis, where he kept the copy in his office or in his house until his death in the 1930s!  The document then passed down through the family until 2002, when it was sold to an antiques dealer.  He then tried to sell the text to the National Constitution Center, but at that point the FBI came in and seized the relic as stolen property.  Ultimately, the courts held that the document belonged to North Carolina.

Anyway, the full story is told in this book, which is a fun read.


The Many Bills of Rights

202px-Webster_2One theme of my next book is that in the nineteenth century many texts vied for the title of our national bill of rights.  Thus, when you see references to the Bill of Rights before the 1890s, you can’t be sure what you’re seeing.

Here’s an example that I’ve finally figured out.  In 1867, President Andrew Johnson vetoed the Second Reconstruction Act, which was part of Congress’s plan to impose military rule on the South until the Fourteenth Amendment was ratified.  In that veto, Johnson quoted Daniel Webster, who said: “[T]he military must be kept, according to the language of our bill of rights, in strict subordination to the civil authority. Wherever this lesson is not both learned and practiced there can be no political freedom.”

Now at first this is puzzling.  While you can construe parts of the Bill of Rights, like the Third Amendment, as being about civil supremacy over the military, there certainly is not any clear language on that.  Then I thought, “Well, maybe Webster and Johnson were referring to the Declaration of Independence.”  People back then did call that a bill of rights, and it does speak directly to the issue of civil/military relations in one passage condemning George III.

So then I looked for the original Webster quote.  It’s in an oration he gave in 1843 to dedicate the monument at Bunker Hill.  (He gave an even better speech there when they began building the monument in 1825.)  Turns out Webster was talking about the Massachusetts Bill of Rights (by “our” he meant “in our state”), which also talks about keeping the military subordinate to civil authority.

Indeed, during Reconstruction you see “our Bill of Rights” defined as

  1.  The Massachusetts Bill of Rights (by Johnson)
  2. Article I, Section 10 of the Constitution (by the Supreme Court)
  3. The first eight amendments (by some members of Congress)
  4. The first ten amendments (by other members of Congress)
  5. The Declaration of Independence (by still others)

There were other candidates (maybe I’ll do another post on that later in the week).


Why Was There No Bill of Rights in the Constitution?

As promised, here come the posts about the Bill of Rights.

One question that naturally arises is why did the Constitutional Convention not include a bill of rights in its proposal, especially given that this omission helped rally the Anti-Federalists?  Here are a couple of thoughts on that:

1.  Some of the delegates (most notably Madison) thought that a bill of rights was either unnecessary or harmful.

2.  Some of them hailed from states that did not have a bill of rights in their state constitution.  It is easy to see why many of these folks would not have thought the issue important.

3.  The delegates had more pressing concerns, such as how congressional representation should look or how the President would be chosen.

4.  The first suggestion to have a bill of rights came from George Mason just five days before the Convention adjourned.

As anyone who has run a lengthy meeting or process knows, complex suggestions that come at the end often get ignored or rejected because people are tired and eager to finish.  Mason may have anticipated this problem, as he added (somewhat hilariously) that it would only take “a few hours” to write a satisfactory bill of rights. Perhaps, then, we owe the lack of a bill of rights in 1787 to nothing more than the failure to suggest the idea in July or June.


Judge Posner Is Wrong

I want to draw your attention to the Seventh Circuit’s opinion in Rowe v. Gibson, which addresses a Section 1983 claim by a prisoner. The panel was sharply–very sharply–divided on the majority’s reliance on facts outside of the record drawn from some medical websites.  Judge Posner, who wrote the majority opinion, argued that this was appropriate, while Judge Hamilton dissented and said that this research was not appropriate.  (Disclosure–I have met Judge Hamilton at some functions, but not for many years.)

I think the dissent has the better of this argument, and that Judge Posner’s discussion of the issue is poorly reasoned.  Here is a key passage:

There is a high standard for taking judicial notice of a fact, and a low standard for allowing evidence to be presented in the conventional way, by testimony subject to cross-examination, but is there no room for anything in between? Must judges abjure visits to Internet web sites of premier hospitals and drug companies, not in order to take judicial notice but to assure the existence of a genuine issue of material fact that precludes summary judgment? Are we to forbear lest we be accused of having “entered unknown territory”? This year the bar associations are busy celebrating the eight hundredth anniversary of Magna Carta. The barons who forced King John to sign that notable document were certainly entering unknown territory, and risking their lives to boot. Shall the unreliability of the unalloyed adversary process in a case of such dramatic inequality of resources and capabilities of the parties as this case be an unalterable bar to justice? Must our system of justice allow the muddled affidavit of a defendant who may well be unqualified to be an expert witness in this case to carry the day against a pro se plaintiff helpless to contest the affidavit?

My first thought on reading this is that Judge Posner’s comparison of his situation to the barons at Runnymede sounds like something silly that an undergraduate would say in a seminar paper.  My next thought is that is this sounds a lot like saying that courts should do factual research on behalf of pro se plaintiffs or plaintiffs who look overmatched in the adversarial process.  Where does that end?

Maybe we would be better off with an inquisitorial system.  But we don’t have one, and Judge Posner can’t give us one (comparisons to Magna Carta notwithstanding).  He should know better, but recently his decision read as if he just knows best.


Birthright Citizenship

As the presidential primary season is here, that means that we are again seeing Republican candidates making the claim that Congress can and should abolish birthright citizenship by statute (Hello, Mr. Trump).  Senator David Vitter, for example, has introduced “The Birthright Citizenship Act of 2015” to do just that.

As I explained in an article several years ago, such a statute would be unconstitutional.  As John Bingham and others said at the time, the law was well-established that virtually all free people born here were citizens, and slavery was an unacceptable exception to that rule.  There were only two other exceptions at common law.

1.  Children born here to foreign diplomats.

2.  Children born here to foreign troops engaged in hostile action against the United States.

Neither of these narrow categories apply to the children born here to illegal aliens.  Their parents are not part of a hostile military force, even if people sometimes loosely call them “invaders.”

A close reading of Section One of the Fourteenth Amendment confirms this view.  Illegal aliens receive equal protection and are deemed to be under the “jurisdiction” of the states.  So you cannot turn around and say that the same illegal aliens are not “subject to the jurisdiction” of the United States under the Citizenship Clause.

UPDATE:  I corrected this post to fix some errors that were in the first version.


Early Voting and a Uniform Election Date

I’ve got a question for folks who are knowledgeable about election law. During the early nineteenth century, states held elections for the House of Representatives and for Presidency on different dates.  The results would slowly trickle in over a few months.  Eventually, Congress concluded that this was not a good system and established a uniform national election day for federal offices.

Why then is early voting in some states for these offices permissible? In effect, we no longer have a uniform national election day.  I can think of a few ways of reconciling this (after reading the statutes):

1.  The “election” means the last day that votes can be cast.  You cannot have late voting, but you can have early voting.  Maybe, but does that mean that a state can set early voting to begin at any time after the nominees are known?  Say, a day after the primary? And did Congress really have early voting in mind when they created a uniform election day?

2.  The “election” means the day that the votes are counted.  We want all of the results announced on the same day (if possible), and that is what the statutes require.  Maybe, but I would think that the ordinary meaning of an election involving casting and counting, not just counting.

3.  There have always been exceptions to a uniform election day (namely, absentee voting).  Thus, the federal statutes do not require all votes to be cast on the same day.  True enough, but how far can you take this logic?

UPDATE:  The Fifth Circuit addressed this issue in Voting Integrity Project, Inc. v. Bomer, 199 F.3d 773 (5th Cir. 2000).  Basically, the Court went with a combination of all three reasons listed above.  The only limit to early voting that a state may not conclude the election prior to Election Day.