Author: Gerard Magliocca


Terrett v. Taylor

In a prior post I talked about the Supreme Court’s decision in Terrett v. Taylor, which in a sense was the first federal case that assessed church/state relations. Taylor has many fascinating details, and I thought that I would elaborate.

Virginia, like many other colonies, had an established church. In 1776, Virginia enacted a statute that disestablished its church but maintained that all of the church’s property would remain church property. Twenty plus years later, though, the state enacted a law asserting that the state actually owned the church’s property.

As a private lawyer, Bushrod Washington advised the Church that any revocation of their land grants would be unconstitutional. In part, this was an argument sounding in property rights, but he addressed the thought that letting the church keep its property after its disestablishment violated the Free Exercise Clause of the Virginia Declaration of Rights. Rejecting this claim, he said that the free exercise issue “cut both ways.” (I was surprised to see this phrase because I thought this as a modern expression, but evidently it is not.) Washington pointed out that the free exercise of the church would be adversely impacted by withdrawing property that was important for its financial well-being, though you could also say that the free exercise of other churches was impeded by the special property privileges of the Episcopal Church. He also stated that the statute that secured the church’s property in 1776 possessed a special presumption of constitutionality because it was contemporaneous with the Declaration of Rights.

The Supreme Court, in an opinion by Justice Story, agreed with these conclusions and held the Virginia law taking away the church property unconstitutional. The Court relied on no federal constitutional provision to strike down this law. Instead, Taylor invoked the “great and fundamental principle of  a republican government, the right of citizens to the free enjoyment of their property.” (In short, a natural law justification that would never pass muster today.) Justice Story also opined that the 1776 statute guaranteeing church property did not violate the Virginia Declaration of Rights; an odd position for a federal court to take, though to be fair the distinctions between state and federal authority were not so clear in 1815.

On the latter point, I am leaning in the direction of saying that Washington must have contributed his earlier analysis to Story’s opinion. We’ll see if I can learn more


The Hidden Hand

The great mystery of the Marshall Court is how the Justices worked together. Because most of those opinions were unanimous and there are few internal documents available on the Court’s deliberations, scholars often fall back on the thought that the author of any given opinion (usually Chief Justice Marshall or Justice Story) supplied all of the reasoning. In some sense we know that cannot be true, but how to prove that?

In writing about Bushrod Washington, I hope to answer that question. Thus far, I have two clues. One is the Justice’s journal that is in the Chicago History Museum. Here you can find draft opinions for a few Supreme Court cases during the 1820s, and I can use those notes as a basis for comparison with the final product.

The second clue relates to an opinion written by Justice Story (Terrett v. Taylor). Taylor is a very interesting case (I’ll say more about it in another post) that addressed the legality of a Virginia statute that sought to strip the state’s Episcopal Church of its property. The Court’s opinion finding the statute unconstitutional can be compared to an opinion that Washington wrote as a private attorney about the issue in the 1790s. Story’s opinion and Washington’s earlier analysis are quite similar in many passages. I’m not sure yet whether this is a coincidence or indicates that Washington (who knew a lot about the matter) contributed significantly to Story’s draft.

Anyway, it’s another piece of the puzzle. The search for more continues.


John Bingham on C-Span3

This Saturday at 4:50PM, C-Span3 will air my 2013 talk on John Bingham that was hosted by the National Constitution Center. It’s part of a weekend set of special programming on the Civil War and Lincoln.


Constitutional Heads of State

The recent Italian elections resulted in a hung Parliament. As a result, the Italian President will play a crucial role in the coming weeks as an honest broker between the parties as they attempt to assemble a coalition. This illustrates an important difference between our Constitution and those of many nations. We do not divide the role of head of state from the head of government.

The function of a head of state in a democracy receives little attention in law reviews. (Indeed, a search shows that law review articles on heads of state are almost always about whether they have immunity from criminal prosecutions or civil suits.) I think that this is a significant oversight. Walter Bagehot’s book on The English Constitution, which is the best book ever written on how constitutions work, spent a great deal of time discussing the powers of the Crown as distinct from the Prime Minister. The fact that many countries deliberately reject the American fusion of the two roles must say something. Maybe separation of powers is incomplete with that extra separation.

One thing that you can say about an elected head of state (let’s leave the Queen or the Japanese Emperor aside for the moment) is that it creates space for a nonpartisan force within constitutional politics. This might be especially helpful when party passions are running hot, while also serving as a reserve authority in moments of crisis (such as a hung Parliament). The lack of any such person in the United States partially explains why we have such a hard time handling presidential election disputes. (The Supreme Court became the de facto head of state, you might say, during the 2000 election.)

The topic is also relevant because, as I’ve posted in the past, President Trump is acting as something of an anti-head of state. What I mean by that is that he makes statements (usually on Twitter) that his officials then say are not government policy. How can that be? Isn’t he the head of government? Or are these officials going rogue? Maybe neither. Perhaps when the President tweets he is not acting as the head of government. It’s not the posture of a traditional head of state, but it has head-of-state aspects.

Anyway, this may be my next article after the one on the ERA.


Bushrod Washington and Women’s Suffrage

One tidbit I came across recently is that advocates of women’s suffrage cited Justice Washington’s opinion in Corfield v. Coryell as a leading authority. Corfield listed the right to vote (as regulated by state law) as one of the privileges of citizens, and everyone agreed that women were citizens. When a female suffrage petition was presented to the House Judiciary Committee, chaired by John Bingham, supporters called Bushrod “the favorite nephew” of George Washington and “the Washington who got all of the brains of the family outside of its great chief.” This argument did not work, as Bingham wrote the report rejecting the petition as inconsistent with Section Two of the Fourteenth Amendment.


State Rescissions of Constitutional Ratifications

If the ERA ever does come back before Congress, one issue that will almost certainly come up is whether three-fourths of the states have ratified given that some repealed their ratifications in the 1970s. While Congress is free to disregard state rescissions and has never recognized such a state right, I cannot see why a state should be precluded from rescinding a ratification under Article V.

There has to be some logical consistency. If Congress can change its mind about the time limit for ratification, then why can a state not change its mind about ratifying? Finality in the process, you might say, only comes when the amendment is ratified. None of the arguments made against state rescissions are persuasive in my view, though I’m open to hearing counterarguments.

Are there circumstances where Congress should ignore a clear state rescission? Maybe they are the same considerations that drive whether an amendment is timely ratified in the absence of a clear deadline. Or maybe they are different. I’m not sure.


The Difficulty of Amending the Constitution

A point often made about the Federal Constitution is that formal amendments under Article Five are very difficult to make. They are more difficult than in most state constitutions and more difficult that most other comparable national constitutions. To an extent this burden is used as a justification for Supreme Court rulings that “update” the meaning of certain constitutional provisions, as well as for overruling what are viewed as erroneous Supreme Court precedents.

Whether that argument is valid or not, another thought along these lines is that, if you think that the Constitution is too difficult to amend, then you should err when possible on constructions that make amendments easier to adopt. The Joint Resolution now pending in the Illinois Legislature to ratify the ERA argues that Congress should have the power to waive the prior deadline for ratification (which expired in 1982) because the Constitution is one of the hardest in the world to amend. But this construction of Article Five depends on the premise that hardest=too hard. Is that the case?

More ERA strangeness tomorrow.


Repeal of Constitutional Ratification–Part II

Yesterday I posed the question of whether Congress can repeal the judgment of a prior Congress that a constitutional amendment was validly ratified under circumstances in which there is a plausible dispute about that point. Here’s a special attribute of the ERA that might require a conditional yes.

Section Three of the ERA says that the amendment shall take effect two years after its ratification. I think this means that within two years Congress could withdraw assent. In other words, the argument for finality of a constitutional amendment decision does not work until the amendment takes effect. Normally that is “immediately.” But not in this case. Thus, the succeeding Congress probably can repeal what the prior one has done. Once the amendment takes effect, though, then probably not.


Repeal of Constitutional Ratification

Here’s a question that I’m working through as I start writing about the ratification of the ERA. Suppose tomorrow Congress enacted a law repealing the Act that admitted California to the Union. Would that be constitutional?

You could say yes. Any statute can be repealed by Congress, and California was admitted through a statute. If a state admission statute is an exception to repeal, then what is the textual basis for saying so?

You could say no. American citizens cannot be permanently deprived of their representatives and Senators by a mere statute. State admission has always been treated as a final decision, subject to only the exceptions in Reconstruction. And there is authority that all states must be on an equal footing, which would not be true if some states can be repealed while the original 13 cannot.

Now comes the next question. If Congress resolves a disputed ratification of a constitutional amendment in favor of ratification, can that be repealed through a simple joint resolution? For example, if Congress concludes that the ERA was ratified by three-fourths of the states and waives the time limits imposed in the 1970s, can the next Congress reverse that decision on the grounds that three-fourths of the states did not ratify given some states repealed their ratifications?

It seems odd to think that a constitutional amendment could be repealed by a joint resolution. On the other hand, any other joint resolution can be repealed. Are Article Five decisions by Congress final? If so, why?  (Sure, as a practical matter you can say that they should be final, but are they truly final?)


Not Your Typical Letter

I’ve read many letters over the years in my research. But I’ve never read one as delightfully bizarre as this one I came across recently in the collection of the New York Historical Society.  It’s from a “Samuel G. Washington,” who claimed to be a nephew of Bushrod Washington. On the letter is a note from the Justice saying “From some impertinent fellow using the name Sam G. Washington” (in other words, an imposter). Here is the text of the letter (Sept. 19, 1823):

Dear Sir,

This is to inform your Honor that I am now living in this County near the great road leading from Lexington to the mouth of Hickman Creek. That I am rescued from the clutches of Davis and his wife, and that they are justly hanged for their crime in stealing me away and cutting open my head. The wound which I received in the head and arm are healed and I am at this time fat and well and weigh 164 lb. Remember me to my mother, sisters, and brothers, and send for me as soon as possible, that I may come and receive the money and negroes which you have for me. I have had strong notions of marriage with Mary Nabb but now have determined that I will spite her by not marrying her and that I will marry no lady until I receive my fortune. Pray write next week and let me know how your Judgeship is coming on, and do not fail to inform how much specie you are saving for me.