Author: Gerard Magliocca


The Original Understanding of the ERA

Following up on my last post, suppose that the Equal Rights Amendment is somehow ratified. How should we interpret a text proposed in 1972 and ratified, say, 50 years later?

The 27th Amendment presents this issue in an even more acute way (proposed in 1789 and ratified in 1992). That amendment, though, is so specific and so rarely litigated that the 200-year-span is not a practical problem.

Not so for our hypothetical 28th amendment. So what should we say here? That the proposal and most of the ratifications happened in the 1970s? Is that the baseline? Or do you blend those views with the ones from today? Does that, though, just let judges choose the original understanding that they want? Won’t the next few states to take up the ERA be tempted to insert statements (say about abortion) that attempt to create a record for interpretation?

Maybe my next article is here.


The Ratification of the ERA

A few months ago, Nevada ratified the Equal Rights Amendment proposed by Congress in 1972.  I have no idea if this was done for symbolic reasons or from a genuine desire to see the ERA ratified.  Nevada’s action, though, raises an interesting constitutional problem about ratification deadlines.

In some constitutional amendments, the amendment’s text says that the proposal is not ratified unless enough states approve within seven years. In other amendments, the deadline is in the resolution proposing the amendment rather than in the amendment itself. The ERA falls into the later category.  Not enough states ratified the ERA in the seven year period, and not enough have done so now even with Nevada’s yes vote.

Suppose, though, that a few more states ratify the ERA. Enough that there is no doubt that there are 38 yes votes.  Can Congress then repeal the original time limit and declare the amendment valid?

My tentative thought is that the answer is yes (an article by three law students from 20 years ago reaches a similar conclusion). A time limit included in the text of an amendment cannot be changed by Congress without using the Article V process. Something in the resolution proposing an amendment, though, is not part of the amendment.  As such, one Congress cannot bind another with such a resolution.

If I’m right, then if enough states ratify the ERA only a joint resolution of Congress would be required to proclaim that text part of the Constitution. Such a resolution is not subject to a presidential veto, given the exclusion of the President from the amendment process and the precedent set by the Fourteenth Amendment. The inclusion of the time limit in the 1970s does mean that Congress must affirmatively declare the amendment valid.  Would such a resolution be subject to a Senate filibuster?  Almost certainly yes.


The Vice Presidential Exception

Here’s a curiosity about our constitutional system. There is one person in the Administration that a President cannot fire–the Vice-President. Suppose a Vice President someday becomes so estranged with the President that he started routinely criticizing the President.  Suppose further that he said, “Yeah, I’m ready to invoke the Twenty-Fifth Amendment if a majority of the Cabinet agrees and we’ll get the President out of here.”

That would be a real constitutional crisis, but not much could be done about it.  Being against the President is not an impeachable offense.


The Right of Petition and Official Social Media

Here’s something I’m going to start thinking about. Could one say that the First Amendment right to petition is implicated when a public official excludes someone from their social media account (say Twitter)?

The petition right is narrower than a free speech right, in that petitions are directed only to public officials.  If someone is excluded from petitioning an official via an important communications channel, is that constitutional so long as there is some other means of doing so that is not too burdensome? My hunch is that the history of the right of petition in English law can tell us a lot about this, but we’ll see.


My Problem with Originalism

I’ve long been uncomfortable with originalism as a method of constitutional interpretation.  But I was never sure why. It’s not for the standard reasons that people give for opposing originalism. Today I had a new thought about this.

Perhaps what bothers me is that originalists almost always say that the original public meaning is also normatively good. In other words, you rarely hear the following argument:

  1. The original meaning of a constitutional clause is X.
  2. That’s terrible.
  3. But we have to apply that terrible principle because we are bound by original understanding.

How do people avoid this logic? One way is to come up with a different original meaning to avoid the terrible result. Another is to deny that the original meaning is, in fact, terrible. (Non-originalists can go with the option of denying that step #3 is true, though they increasingly just act creatively at step #1.)

Why do people want to avoid this chain of reasoning? First, we don’t like to admit (at least today) that parts of the Constitution properly understood are terrible. Second, lawyers may feel that openly saying that we are bound by something terrible would undermine confidence in the law.

Anyway, this is a tentative thought.  Not yet a theory.


Is Obamacare Settled Now?

Four years ago, I wrote an op-ed in the Washington Post entitled “Why Obamacare Isn’t ‘Settled’.” In that piece, I said:

A statute or court opinion becomes settled law when there is a broad consensus that it is just. But a more practical rule of thumb is that both political parties must agree on its legitimacy . . . Once both parties agree that something is untouchable, however, only a truly extraordinary effort by citizens can bring about change. In this sense, the parties serve as formidable guardians for the rule of law.

I then pointed out that because Republicans denied that the Affordable Care Act was just, you could not say (as many Democrats were saying then) that the Act was settled law. Then I said:

Will they change their minds? What leads a political party to accept as settled law something it earlier contested? In the past, determined resistance to transformative statutes has shifted only when and if it became clear that standing on principle was doomed to fail. Party leaders either lost power or became very afraid of losing power.

Are we now at that point?  Probably.  The GOP Congress has by its inaction given its stamp of approval to Obamacare.  (Not every detail, of course, but to the basic structure.) Why did they do that? Because enough of them were afraid of losing their seats in the next election.



An Interpretive Fable

I came across this story in an Indian children’s book.  Hope you enjoy its take on interpretation.

Five men set off in a ox cart to sell produce from their garden and to buy provisions at the local market. They were Guruji the teacher, in a bright saffron turban, and his four very enthusiastic, very obedient disciples. Guruji urged his men, ‘Your guru is like a cow, ever ready to give milk for your benefit. So always, always, follow your guru’s orders.’ ‘Ji ha,’ said the four men together, their heads wobbling in agreement.

Guruji went on. ‘Make sure you take the essentials to eat and drink. We will not stop at all as I want to reach the market by noon.’ ‘Ji ha,’ said the four men. They loaded the cart with a big black pot of rice, jars of water, and a basket filled with fruit and vegetables for selling at the market. They sat in the soft, hay-lined wagon at the back. The cart was drawn by two oxen with tinkling brass bells on their thick necks. It was a beautiful day and the morning breeze tickled their noses.

Soon Guruji dozed off, and his head rolled from side to side. On the way the cart swerved to avoid a troop of monkeys. It gave a big jolt and Guruji’s turban slipped off his head and fell on to the road. ‘Stop!’ cried two of the men. ‘We must pick up Guruji’s turban.’ ‘No!’ cried the other two men. ‘Don’t you remember? Guruji doesn’t want to stop at all. He wants to reach the market by noon.’ The men did not know what to do. They looked at Guruji for guidance, but their teacher’s chest rose and fell with rattling snores. They continued the journey and the bullock cart wound its way along the road that skirted the edge of the river.

Guruji woke up, feeling very hot. He stroked his bald, damp head. ‘Where is my turban?’ he shouted. Guruji seemed very angry. The four men looked at each other. Then one of them said, ‘Guruji, it fell when the cart jolted!’ ‘Then why didn’t you pick it up?’ The four men shrugged uneasily. ‘Guruji, you told us not to stop at all,’ they said together. ‘Silly, silly men!’ Guruji slapped at his forehead in frustration. ‘How will I go to the market without my turban? Turn back at once. I need my turban!’ ‘Ji ha,’ said the four men together, and they all wobbled their heads in agreement. The cart turned back. Soon the men spotted the bright saffron turban on the road. They stopped the cart, picked up the turban and gave it to their teacher.

Guruji placed it on his head and wagged his finger at the four men. ‘Next time, pick up ANYTHING that falls on the road! Do you understand me? Do you?’ ‘Ji ha,’ said the four men, wobbling their heads. ‘Now hurry up or we will never reach the market in time.’ ‘Ji ha,’ said the four men, wobbling their heads once again. The five men in the ox cart set off for the market once more. Further along the road, Guruji dozed off again. Soon the droppings of the oxen fell heavily onto the road. Plop! Plop! Plop!

The four men looked at each other, horrified. They were supposed to pick up anything that fell on the road. ‘Stop’ cried two men. ‘We must pick up the dung, even if it is filthy. We must obey Guruji.’ ‘No!’ said the other two. ‘We will be late for the market!’ The tour men argued for a while. They looked at their sleeping teacher and recalled his orders — to pick up ANYTHING that fell on the road. Finally, they stopped the cart and the four men leapt out. They scooped the dung off the road and dropped it into the back of the cart, even though it made their hands filthy, even though they felt squeamish doing it.

Guruji woke and saw the pile of brown dung in the wagon next to him and asked, ‘What is this?’ ‘Dung,’ explained the four men. ‘It fell on the road so we picked it up.’ Guruji turned as red as cherry. ‘Silly, silly men! Stop! Get this dung off at once and clean the cart and your hands.’ ‘Ji ha,’ said the four men. The cart stopped. The men scooped the dung out the wagon then went to the river to wash their hands. When they returned, Guruji had calmed down. ‘I have made a list of all the essentials to be picked up if they fall off the cart.’ He handed the list to them. ‘Now, for your guru’s sake, please follow this list. DO NOT pick up anything that is not on the list. Is that clear?’ ‘Ji ha,’ said the four men, wobbling their heads in agreement. They read out the list:

Guruji’s turban;

The basket of fruit and vegetables;

The pot of boiled rice;

Jars of water.

The five men in the ox cart set off for the market once more. On their way, the cart ran into a tree and rolled over. Guruji fell into a deep, muddy ditch, while two of the men were flung on one side of the ditch and the other two were flung on the other side, along with the basket, the fruit, vegetables, pot of rice, and the jars of water. The men went through their teacher’s checklist to see what had fallen out of the cart: ‘Guruji’s turban did not fall. The basket of fruit and vegetables fell.’ They picked up the basket, but left the fruit and vegetables scattered on the road. ‘The pot of boiled rice fell.’ They picked up the pot, but left the rice. ‘The jars of water fell.’ They picked them up.

‘Help!’ cried Guruji. ‘Get me out of here.’ The four men shook their heads in unison. ‘Guruji, you are not on the checklist you gave us.’ ‘Help! Help!’ cried Guruji, struggling to get out of the ditch, but falling face down into the sticky mire. His white gown and face were soiled brown. The four men looked at each other in confusion. ‘He is testing us,’ said one of them. ‘This is a hard test, but we must follow his list.’ ‘Help! Help! Help!’ cried Guruji again. The four men looked helplessly at their teacher.

An old woman collecting twigs for firewood heard Guruji’s cries and ran to help. She held out a long twig to him. ‘Hold on to this,’ she said and pulled and pulled. Guruji clung on to the other end of the twig, but slipped and sank back into the sticky mire. The old woman suddenly caught sight of the four men standing still like temple pillars. ‘Stop gawking!’ she cried. ‘Come and help me.’ The four men shook their heads sadly. ‘We must follow Guruji’s checklist and he is not on it.’

‘Give me that list.’ The old woman grabbed it from the men and threw it to Guruji, who hastily scrawled his name on it. Then, and only then, did the four men pull their teacher out of the ditch and help him back on to the ox cart! ‘Turn back. We are not going to the market,’ said the upset Guruji. ‘Ji ha,’ said the four very obedient but very bewildered men.


A Presidential Indictment

Perhaps I’m missing something in the discussion of this issue, but to my mind the question of whether a president can be indicted is simple–the President can only be indicted by a federal prosecutor if he consents to the indictment.

I would hope that we can all agree that a state cannot indict the President. This would raise impossible structural problems similar to those identified by M’Culloch v. Maryland (in other words, one state would be able to control the Executive Branch and oust the President by throwing him in jail).

What about the feds? I’m hard-pressed to see why the President cannot consent to being indicted. He could allow the indictment from a US Attorney (through a grand jury) to proceed and could refuse to raise his unique office as a defense to the charge.

Why would a President want to do this? Perhaps to clear his name in a trial. Perhaps because he might think allowing a trial to go forward would forestall an impeachment. Are these likely scenarios? No. I would say a President would be crazy to let himself be indicted.