Author: Gerard Magliocca


Unintended Consequences and the Bill of Rights

As you know, I’m working on a book about the Bill of Rights.  The book is currently in publisher’s limbo, by which I mean that I’ve turned in the first draft and am waiting for the manuscript to be returned to me for the next round of changes.  Until then, what will I be mulling over?

First, I want to see what (if anything) President Trump has to say about the Bill of Rights.  My book ends with Bush 41’s speech in 1991 marking the bicentennial of the Bill of Rights.  (I’ve posted about that speech before.)  Since then, there really haven’t been any significant presidential statements on the Bill of Rights, and no real celebration was held to mark the 225th anniversary of ratification this past December. But maybe the new President will say something that I will need to include.

Second, I’m wondering about a question posed by one reader of the draft.  To what extent was the expansion of civil liberties in the 1940s an unintended consequence of the way in which FDR talked about the Bill of Rights?  One argument in the book is that Roosevelt often used and emphasize the Bill of Rights to justify the New Deal and the growth of federal power to fight World War II.  If that’s true, then couldn’t you say that the wider embrace of the term and of the first set of amendments for a different purpose was in part an accident. I think my answer is “kind of,” but I need to give that more thought.


The Validity of Section Two of the Fourteenth Amendment

The other day I posted a hypothesis that the current apportionment of the House of Representatives does not comply with Section Two of the Fourteenth Amendment. Before explaining that further, I must address the threshold question of whether Section 2 is still part of the Constitution. This is a live issue partly because Professor Gabriel Chin (now at Davis) wrote an excellent article in 2004 arguing that the Fifteenth Amendment implicitly repealed Section Two of the Fourteenth. I do not find this claim persuasive though.

Here is why you might think that the Fifteenth Amendment repealed Section Two of the Fourteenth Amendment. Section Two allows states to deny African-American men the right to vote–the result is just that the state loses representatives.  But The Fifteenth Amendment says that the states may not discriminate on the basis of race for voting. Since these are inconsistent ideas, perhaps the best reading is that the Fifteenth Amendment superseded Section Two. Professor Chin’s article explains that some people also made this argument shortly after the Fifteenth Amendment was ratified.

Nevertheless, there are significant problems with this interpretation. One is that the Fifteenth Amendment talks only about race whereas Section Two is not so limited. Granted, the object of Section Two was primarily to encourage voting access by African-American men, but the omission of the word race makes the two texts somewhat different. A second, and more powerful objection to my mind, is that one year after the Fifteenth Amendment was ratified Congress and the Census Bureau spent a considerable amount of time thinking about whether and how Section Two should be applied. Not a word was uttered then that the Fifteenth Amendment had repealed Section Two (nor was anything said about that when the Fifteenth Amendment was debated).  This seems like pretty strong evidence that no repeal occurred.

This is not a complete response to Professor Chin’s arguments, which I guess I would have to save for an article, but the upshot is that I think Section Two is still the law. But what does this mean for how we conduct the census and apportionment?  That’s my next post.


Is the Present House Apportionment Unconstitutional?

I’m going to begin a series of posts about my next project, which will examine the Reapportionment Act of 1929; a critically important statute that fixes the size of the House of Representatives at 435 and delegates the reapportionment power to the Department of Commerce.

My first comment on this deals with the problematic relationship between the 1929 Act and Section Two of the Fourteenth Amendment.  Section Two of the 14th Amendment says:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

The idea behind this provision is that a state should lose representation in the House and in the Electoral College to the extent that the state wrongfully excludes people from voting.  There is a school of thought that this provision was implicitly repealed by the Fifteenth Amendment. Let’s assume for purposes of argument that this is not the case (I’ll explain why I think that assumption is warranted in another post).

The current reapportionment statutes, though, do not say anything about conducting a Section 2 review after a census.  The Commerce Department just takes the census data for each state and plugs it into a formula (last revised by Congress in 1941) to decide how many representatives each state gets.  Each state must get at least one (because Article One of the Constitution says so) and the total number must be 435 (because the 1929 Act says so). Meeting these requirements means that every state actually ends up getting some fractional amount of representatives, and the formula tells the Commerce Department when to round a fraction up or down.

Why is the current statutory scheme constitutional?  The Section Two command is not in the specific formula Congress created to apportion representatives among the several states. You might say that these laws can be read as delegating this power to the Commerce Department (I’ll take this issue up in another post), but even if that is true the Department did not conduct such a review after the last census, nor have they ever done one as far as I can tell.

Thus, I submit that the current apportionment of Representatives in the House (and the allocation of votes in the Electoral College) violates Section Two of the Fourteenth Amendment by ignoring it. Congress or the Commerce Department could easily fix this problem, but I’ll get to that separately.


The Clay Feet of Qualified Immunity Doctrine

I want to draw your attention to an important new paper by Will Baude on the flawed legal  foundations of qualified immunity doctrine. The paper lucidly explains that the Supreme Court’s explanations for why 42 U.S.C. Section 1983 should be interpreted to include a qualified immunity exception are unconvincing, and thus at a minimum the Court should stop enforcing the doctrine vigorously through summary reversals and compounding its error.

As a law clerk and then as a scholar teaching Torts and Constitutional Law, I have always found qualified immunity law puzzling. Why? Because Section 1983 says nothing about immunity and there is no compelling reason for thinking that Congress intended to create anything like qualified immunity following the Civil War.  (I looked into this when I was writing the Bingham biography, but I did not find anything revealing). The only way that I can make sense of the Court’s cases in this area is that Section 1983 is being treated as a common-law statute much like the Sherman Antitrust Act or the Lanham Act. By that I mean that the Justices believe Congress intended to give the courts broad latitude to develop the law of the statute. Professor Baude observes, though, that the Court has never given this justification for its qualified immunity rulings, perhaps because there is also no reason to think that Congress thought Section 1983 was that kind of statute.

The law in this area is so thick that it is hard to imagine the Court abolishing qualified immunity (though, of course, Congress can). Indeed, it is telling that none of the Justices dissent from the basic features of current doctrine. Professor Baude’s paper, though, might change that.


A Scholar is a Bus

This is a phrase attributed to Alexander Bickel, the noted constitutional scholar.  What he meant was that scholars should do their research without concern about its partisan implications. The bus goes on its route no matter who might be riding, where they get on, where they get off. The same is true for researchers and those who use their research.

Years ago I posted here about the fact that I believed the federal anti-nepotism statute may well be unconstitutional as applied to at least some presidential appointments. This reading now helps the President-elect, as he wants to name his son-in-law to the White House staff. Now I can’t stand the President-elect–he’s like Yosemite Sam come to life.  But is my view of the anti-nepotism law any different because of that?  No, as I’ve been telling journalists who call me.

To be fair, it’s easier to follow (or stick to) the logical consequences of previously published work. Remaining detached when engaging with a new issue where you know what the immediate political impact will be is much harder. But we try.



A Right to Use Cash?

A development in India that unfolded while I was there inspires this post about money and privacy.  In November, the Indian Government announced a “demonetization” plan.  The largest bills in circulation (500 and 1000 rupee notes) were declared invalid by the end of the year, to be replaced by a new 2000 rupee note.  You could deposit 500 and 1000 rupee notes in the bank before the deadline, but that would either force people to open a bank account (as many people there do not have one) or raise awkward tax questions for people depositing cash amounts far in excess of their declared income.  How well this worked is an open question (lots of people apparently swapped their old cash for the new cash), but here is my question:

To what extent does the ability to use cash implicate a significant privacy right?  Some economists, most notable Kenneth Rogoff, argue that we would be better off getting rid of cash.  Illegal activity, they point out, would be much more difficult to finance without cash. The same could be said about corruption.  No cash means all money would be in the financial system, and so on. One objection to this line of thought, though, is that getting rid of cash would mean that every transaction would be known by your credit card company or bank, and could be known by the government through a search warrant. Cash, by contrast, allows you to keep transactions private, so long as the vendor doesn’t report or remember you.

While I cannot imagine a court saying that Congress lacked the power to prohibit cash as legal tender (the power to coin money probably includes the power not to coin money), I can imagine Congress refusing to adopt such a proposal because of its privacy aspects.  Should those concerns, though, outweigh the benefits of channeling transactions into other forms of payment?  Someday we may have to think about that more carefully.



The Framers’ Coup: The Making of the United States Constitution

One book that I read during my trip was Michael Klarman’s account of the Constitution’s creation, which I highly recommend. The book provides a wonderful overview of the political crisis under the Articles of Confederation, the process that led to the Constitutional Convention, the Convention, the ratification debate, and the drafting of what we now call the Bill of Rights.

Klarman’s thesis is that the Framers were far more nationalist and antidemocratic than the average American in 1787, but their proposal was ratified in spite of this disparity for a variety of reasons. I agree with the first part of this claim–the Framers were ultra nationalists for their era–but I think the second claim about their skepticism about democracy is overblown.

One flaw in Klarman’s account is that the Framers omitted a bill of rights from their proposal. In a sense, they were more willing to trust the democratic process (direct or indirect) than their critics, who insisted that additional constraints were necessary to protect basic liberties. Thus, I’m not sure who was more skeptical of democracy–the Federalists or the Antifederalists–although this insight does depend on how much you think the Antifederalists contemplated judicial review.

A second issue is that I’m not sure that the state constitutions of that era were more democratic than the Federal Constitution, which is part of Klarman’s case against the Framers.  Some of the state constitutions were more democratic, but others were not. Klarman himself points out that many of the states had grossly malapportioned legislative districts (which helped the Federalists in the ratification conventions), for example.

Third, I am dubious about the thought that what the Framers said in Philadelphia represented their “real” views about democracy and that anything they said later was “phony” and designed solely to win support for the Constitution. This was true to some extent, but that cynical take ignores the idea that some of the Framers could have changed their views over the course of the debate.

In any event, you should read the book.  You’ll learn a lot.


See You in 2017

I am leaving on an extended overseas trip tomorrow and won’t be back until January.  During that time, I plan to spend as little time online as possible.  Have a wonderful holiday season.  What could possibly happen while I’m away?


Foreign Emoluments Clause

Recently there has been a discussion about whether the Foreign Emoluments Clause applies to the President.  Here is the text:

“No Title of Nobility shall be granted by the United States; And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

The argument that this does not apply to the President centers on the fact that Article II subjects the President to impeachment and removal for (among other things) bribery. From this, you could draw two conclusions.  One is that the only remedy for a President taking foreign bribes is impeachment, which requires more votes than an Act or resolution of Congress. The other is that presidents can take gifts from foreign states so long as they are not bribes.

Here’s a problem though.  Article One says that an impeachment conviction may carry with it “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” This last phrase is the same as the one in the foreign emoluments clause. If the phrase does not include the President, then doesn’t it follow that the Senate cannot bar an impeached and convicted official from being elected President if he is eligible?  Maybe the Senate should not be able to forever bar someone from the White House, but I’m not sure why.

UPDATE:  Let’s turn this idea around.  If the Senate cannot disqualify somebody who is convicted from being President, then that strongly supports the reading that the F. Emoluments Clause does not apply to the President.