Author: Gerard Magliocca


In the Shadow of the Bill of Rights

One point that many judges and scholars make is that our emphasis on the Bill of Rights obscures the role that constitutional structure plays in protecting liberty. In other words, people tend to pay less attention to the internal limits  within the text (bicameralism, separation of powers, federalism, and enumerated powers) than they should. There may be cause and effect here, as the decline of those internal limits in the 1930s at least corresponded with the rise of the Bill of Rights as a prominent part of America’s constitutional culture.

What gets less attention is that you can tell a similar story about the rights that are in the 1787 Constitution. Hardly anyone pays attention to the Contracts Clause now. Likewise, Article III’s guarantee of a jury trial in federal cases is treated as if it were superseded by the Sixth Amendment, though that if far from clear. But there was a time (the 19th century) when Article One, Sections Nine and Ten were referred to in Supreme Court cases as being “in the nature of a bill of rights” when no such praise was given to the first set of amendments. (The Contracts Clause also played a leading role in many major early Supreme Court cases.)

My point, which I may develop more forcefully as I present the book, is that using the Bill of Rights as a means of constitutional categorization has costs. Some get downgraded by their exclusion and some get unduly elevated by their inclusion. (More on that next time.)


John Bingham on the Expulsion Power

I’ve taken a closer look at Bingham’s final speech in the House of Representatives, in which he discussed expulsion. (The cite is Cong. Globe, 42nd Cong, 3d Sess. App. at 136-140 (1873). In that speech, Bingham rejected the argument that any house of Congress could expel a member for misconduct that occurred prior to his election. Since this point bears directly on what might happen with Roy Moore, I thought that I would provide some quotes from the speech. For the most part, JAB discussed the precedents of Parliament and Congress, though he also made a textual point that I’ll discuss at the end of the post.

Here is how Bingham summarized the internal precedents as of 1873:

It has been solemnly declared that no such power belongs to either House, to wit: to try and expel a member of either body for offenses, though infamous in their character, committed before his election.

He further denied that the House had “jurisdiction over the past life of every man who by the suffrages of the people may be elected a member of Congress.” At one point he hedged a bit and suggested that a criminal conviction during that Congress for past misconduct might present a different question, but that hypothetical does not cover the Moore case.

Bingham’s textual argument went something like this. Article One, Section Five of the Constitution states: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member.” He argued that the language about disorderly behavior referred to only behavior as a member, and thus the next clause about expulsion should also be so limited. (In other words, expulsion is a specific punishment and thus linked to the prior clause.) He also, of course, argued more broadly that voters should be able to choose their representatives subject only to the qualifications in the Constitution (age, citizenship, residence).

I highly doubt that anywhere close to two-thirds of the Senate is interested in expelling Senator Moore, but if the idea is taken up seriously here is one source people should consider.

UPDATE: Or, if Jones wins, never mind.


One More Thought on Moore

While the constitutional discussion is focusing on whether the Senate could expel a Senator Moore given its past practice, another take that is getting less attention goes something like the following:

Suppose the election is very close. The Senate is the ultimate judge of who won a Senate election. In recent decades, the Senate has deferred to the conclusion of state authorities when an election result is contested. They do not, though, have to defer. It is possible that the Senate could refuse to accept the state’s conclusion that Moore won a very close election, and either seat Jones or order a new election. Granted, if this is just a pretext to exclude Moore, then a suit challenging that exclusion would succeed under the Court’s decision in Powell. You can imagine, though, a scenario in which there could be a mix of motives, which would require a court to uphold the Senate’s decision as a lawful exercise of its Article I, Section 5 powers.


The Limits on the Expulsion Power

This post may be rendered moot tomorrow, but if Roy Moore is elected the issue of whether he should be expelled from the Senate will arise. On that point, I want to note that there is considerable authority to say he cannot be expelled for his alleged sexual misconduct.

The principle, enunciated many times in Congress, is that a member may only be expelled for something that occurred while he or she was a member in that Congress. Thus, conduct that occurred prior to an election cannot be the basis for an expulsion unless that conduct leads to a criminal conviction during that Congress. (In other words, if Congressman X is convicted for taking bribes five years ago, that conviction can serve as a basis for expulsion even though the bribes were taken prior to that Congress. But Congressman X cannot be expelled just because he took bribes five years earlier.)

In his last speech to the House of Representatives, John Bingham took the position that I am describing and defended the view that the House could not expel a member for alleged misconduct that occurred prior to that Congress. (He was speaking about proposed sanctions for certain members caught up in the Credit Mobilier scandal. The members were instead censured.)  In Powell v. McCormack, the Supreme Court reviewed this point and stated: “The House’s own manual of procedure applicable in the 90th Congress states that “both Houses have distrusted their power to punish in such cases.”

Now I’m not saying that there would be judicial review of a decision to break with precedent and expel a Senator Moore. I’m simply saying that the traditions of both Houses hold that they lack such a power under Article I, Section 5 of the Constitution because Moore’s alleged wrongs occurred long ago.


Bushrod Washington and Alexander Hamilton

Next year there will be many Bushrod Washington posts from me as my research on this book heats up.  (I’ve been going through the correspondence between Bushrod and George, which contains many gems.)

I thought I’d take a moment to say something about Bushrod’s interactions with Alexander Hamilton, as the musical continues to be a pop culture phenomenon. One fact that made Bushrod important has that George Washington gave him all of his papers. Naturally, many people wanted to look at these materials, and the Justice was forced to think about he should handle such requests. One came from Alexander Hamilton in 1801, though it is not known what Hamilton was requesting. Evidently he wanted a copy of a memo he gave to the President as Treasury Secretary. Justice Washington refused, on the grounds that if he gave Hamilton access then he would feel obliged to give similar materials to everyone. He added that this would mean that some of Washington’s papers would be used for partisan purposes, and that he did think that was in keeping with the President’s wishes. Here is how Washington discussed his thinking to Hamilton:

The opinions delivered to the President by the heads of departments were those I presume of a private council and intended for his information. From hence I conclude that they were not put upon the files of any of the public offices and are to be found only amongst the papers of the General. They could therefore be obtained from no person but myself. Other measures of that administration may be again censured, discussed, and condemned by one party, and vindicated by the other, whilst both must or at least may resort to the same quiver of arms to fight with. Acting with the fairness which shall always mark my conduct, I could not upon such a subject refuse to one what I have granted to the other party, and thus the papers might be used in a way very different from that which I am persuaded was intended by the person who confided them to my care.



Conditional Ratification

I’ve started drafting my next article, which will be about the recent attempts to revive the Equal Rights Amendment. One issue that I have not posted about before involves the form in which Congress could declare the amendment ratified.

To recap some old posts: Nevada ratified the ERA in 2017. Depending on how you count the number of state ratifications, the amendment could be just two states short of the 3/4 that are required by Article Five. Nevertheless, Congress declared in a 1978 Joint Resolution that the ERA must be ratified by a specific date in 1982 to be valid. Thus, Congress would need to repeal that Joint Resolution for the ERA to be ratified.

The unusual circumstances surrounding any proposed ERA ratification raise the following prospect. Suppose Congress concludes that enough states (with or without rescissions) have ratified the amendment and that the old deadline should not apply. In taking those steps, Congress could also formally state its understanding of what the ERA does or doesn’t mean. For example, the Joint Resolution repealing the 1978 one can say: “We declare the Twenty-Eighth Amendment ratified, but also declare that this amendment does not apply to abortion.”

This sort of conditional ratification does not bar a future court from giving a contrary construction (as would be the case if the text of the amendment made an exception for abortion), but it would provide clear and powerful guidance for courts. More so than just having some members of Congress express their view in a speech endorsing or rejecting ratification.

One wonders if this sort of compromise might be necessary to get the ERA deadline waived should the issue ever arise.


Unindicted Co-Conspirator

Here’s a question for people who know more about criminal law than I do. Suppose a prosecutor decides to name someone as an unindicted co-conspirator. What is the remedy for that person if he or she seeks to challenge that label? Even though there is no criminal jeopardy from such a determination, there may be civil or political consequences. Any thoughts?


Upcoming Talks on the Bill of Rights Book

I have two talks coming up on my new book that are open to the public. The first one will be at the National Constitution Center in Philadelphia on Friday, December 15th at 10AM. This event will be part of the Center’s Bill of Rights Day Symposium, and will also feature a talk by Professor Noah Feldman about his new book on James Madison. The second talk will be at the National Archives in Washington DC on Friday, January 26th at Noon. Please come if you can!


Packing the Lower Federal Courts

A new draft paper by Steve Calabresi and Shams Hirji proposes that Congress dramatically expand the number of federal district and circuit judges. While noises are made in favor of doing this to improve the administration of justice, the main thrust of the paper is that such a proposal (if enacted) would give Republicans control of those courts.

Let me offer a somewhat offbeat take on this terrible idea. At first blush, this court-packing proposal sounds very pragmatic (indeed, excessively so). In fact, though, it’s extremely formal in a way that only legal academics would suggest.

Why? Consider the leading precedents on packing. In Britain, there was the threat of Lords-packing in 1832 and in 1911 that ended those constitutional crises. Then in 1937 there was the threat of Court-packing from FDR. In the first two examples, actual packing was unnecessary. A credible threat from the Cabinet and the King was enough to induce the House of Lords to change its behavior. In 1937, cause and effect is harder to establish, though the credible threat of Court-packing probably convinced Justice Willis Van Devanter to retire, which made a restoration of the Old Court impossible.

The Calabresi/Hirji proposal, by contrast, can only succeed if actually implemented. The federal judiciary is far too large and heterodox to be shifted in orientation by a threat of packing.  It is also worth noting that confirming many new judges in such a partisan fashion would be difficult in the Senate, given that the rules allow the minority to insist on 30 hours of debate on each judge. Far from being politically clever, the proposal is in fact politically clueless.


Guest Posts on Carpenter v. United States

I’m pleased to announce that Professors Lior Strahilevitz and Matt Tokson will be posting next week about this case, which raises significant Fourth Amendment issues. The Court hears oral argument on Wednesday. We welcome them to CoOp!