Author: Gerard Magliocca

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Singular vs. Plural

Let me tell you about another juicy detail from Bushrod Washington’s “lost” journal. The journal contains his draft opinion in Green v. Biddle, in which the Court invalidated two state statutes from Kentucky that dealt with property rights. At the close of an opinion on this hotly contested issue, he wrote:

“[W]e hold ourselves answerable to God, our consciences, and our country, to decide this question according to the dictates of our best judgment, be the consequences of the decision what they may.”

In the draft opinion, here’s how this passage reads:

“I hold myself answerable to God, my conscience, and my country, to decide this question according to the dictates of my best judgment, be the consequences of the decision what they may.”

What does this difference mean? Was the draft opinion originally only for Washington (as a concurrence or dissent)? Did he just write drafts in the singular person until he received enough joins to make a majority? I’ll keep digging to find out.

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Subsidies Under the Affordable Care Act

I would be curious to hear opinions from people who know more about health law than I do. I can think of three ways to understand the President’s decision to stop certain subsidies to participants in the insurance exchanges.

  1. The subsidies are illegal because there was no appropriation for them. This is the position of the House Republicans in litigation pending before the DC Circuit.
  2. The Act gives the President discretion to give subsidies.
  3. The Act gives the President no discretion (or not enough) and thus any cancellation of the subsidies is an unlawful impoundment of funds.

Which one is correct? Or is there a fourth option?

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Privileges and Immunities in Corfield

I thought that I would provide a full transcript of the money quote in Justice Washington’s notes on Corfield.

“As to the 4th article second section of the Constitution, ‘the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.’ Is the right which a citizen has to enjoy the common property belonging to the citizens of the state a privilege or immunity? See infra A

A. I am inclined to think that it is a privilege within the meaning of this article of the Constitution. If it be not, then the rights to navigate the waters would not be, because they also are common property, and yet it would seem to violate this article to make a law forbidding citizens of their state to navigate the waters of that state. I am inclined to the opinion of the Court in Livingston v. Van Ingen, that the ___ of this article is that the citizen of each state shall within every other state have equal privileges or rights as the citizens of such state have, the words all privileges of citizens being equivalent to equal privileges.”

[There is one word I can’t quite make out.]

Other portions of the Corfield notes include summaries of the relevant cases, which is interesting from the standpoint of seeing how Washington made decisions. There is also a section on the Commerce Clause issue in the case, which I need to think about further in light of what was decided in Gibbons v. Ogden.  More tidbits to come.

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Some Thoughts from George Washington

In reading this letter by our first President about Bushrod Washington, I couldn’t help but think of the current President:

“With great pleasure I received the information respecting the commencement of my Nephew’s political course. I hope he will not be so buoyed up by the favorable impression it has made as to become a babbler.”

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Annotating Section Two of the Fourteenth Amendment

Last week I participated in a workshop organized by the ABA to assist civics teachers who want to teach their students about the Fourteenth Amendment. As part of that program, the ABA gave each of us a pocket constitution.  You are all familiar with these. But the ABA version is annotated to some extent. At the end of Section Two of the Fourteenth Amendment, a note says “Section Two age requirements superseded by the 26th Amendment and ‘male’ restrictions superseded by the 19th Amendment.”

Now I think this is the correct reading, as I explain in my forthcoming paper about Section 2 and the reapportionment process. On the other hand, no case says this, which raises the question of why the annotators think that this is true and are telling people it is true. (This is the only annotation for the amendments in the ABA pocket constitution.)

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Other Finds in the Bushrod Washington Journal

In addition to the Justice’s notes on Corfield, here are some other notable items in the journal that I found that is held by the Chicago History Museum.

  1. Part of Washington’s draft opinion in Biddle v. Green, a controversial debtor/creditor case that he wrote for the Supreme Court to supersede an earlier opinion by Story.
  2. His notes on Ogden v. Saunders, a Supreme Court case on bankruptcy law from which John Marshall dissented.
  3. His draft opinion in Le Tigre, a circuit case on salvage.
  4. Some observations on the defects in the enforcement of the Fugitive Slave Act of 1793. (I’ll say more about this after I do further research.)
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Not King Tut’s Tomb, But . . .

I am pleased to announce a discovery that will interest many legal scholars. The Chicago History Museum has a journal that contains Justice Bushrod Washington’s notes on Corfield v. Coryell; the 1823 circuit case that set forth the first major interpretation of the Privileges and Immunities Clause of the Constitution and was an influential source for some members of the Thirty-Ninth Congress in assessing the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment.

I am currently researching a biography of Justice Washington and learned that the Chicago History Museum has some relevant materials. The item that immediately drew my attention was a notebook that dates from the 1820s (I need to do more work to give a precise date range). The journal contains drafts of letters, legal research, notes about life at Mount Vernon, and rough versions of at least two of the Justice’s Supreme Court opinions. My eyes opened as wide as saucers, though, when I saw “Corfield v. Coryell” as a heading followed by pages of notes about the case.

What do these notes tell us about Corfield? One revelation is that Washington’s initial view with respect to privileges and immunities was the opposite of what the opinion ended up saying. Corfield concerned a claim that a New Jersey statute barring non-residents from harvesting oysters and clams in state waters was unconstitutional, among other reasons, for violating the Privileges and Immunities Clause by making a distinction between state residents with respect to a privilege. The Court rejected this argument, concluding that no privilege was involved. Washington’s notes on the case, though, say “I am inclined to think that it [in other words, harvesting oysters and clams] is a privilege within the meaning of this article of the Constitution. If it be not, then the right to navigate the waters would not be, because they also are common property, and yet it would seem to violate this article to make a law forbidding citizens of their state to navigate the waters of that state.”

Another significant insight is that Washington’s thinking was shaped by an 1812 New York case, Livingston v. Van Ingen, in which Chancellor Kent discussed the Privileges and Immunities Clause briefly. The notes state that Washington found this case persuasive on the point “that the citizen of each State shall within every other state have equal privileges or rights as the citizens of such state have the words all privileges of citizens being equivalent to equal privileges.” The actual opinion in Corfield, though, does not cite the Livingston case at all.

I will have more to say as I work through other portions of the journal. I will also think about how to make this material available as widely as possible without treading on the interests of the Chicago History Museum. Anyone, of course, can go there and look at the journal.   

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Bipartisan Partisan Gerrymandering

The transcript of yesterday’s arguments in the partisan gerrymandering case left me confused. First, there was not a good answer as to why the plaintiffs have standing to challenge the statewide map. Perhaps five Justices will just decide that they want to reach the merits, but I’m not sure.

On the merits, the Court is still quite muddled on what the problem is. Justice Breyer, in his typical way, rattled off several factors that could guide courts in their analysis. The first one was that there could be no valid claim if one party was not in charge of redistricting.  But this is wrong. Two parties can collaborate on gerrymandering safe seats for both parties. Granted, this sort of bipartisan partisanship does not create a big discrepancy between vote and representative shares, but it does classify people according to their political views and increase political polarization (marginally).

I guess Justice Breyer thinks that only partisan partisan gerrymandering is a problem if it’s bad enough. Why that should be singled out is a mystery to me when you are talking about courts that generally ought to use neutral principles.

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Jim Ho for the Fifth Circuit

I was very pleased to see that the President nominated Jim Ho for a seat on the Fifth Circuit. I went to college with Jim and kept up with him somewhat after that, though not recently. I can say, though, that he’s a smart and thoughtful man who should be an excellent judge. I hope he is swiftly confirmed.