Author: Gerard Magliocca


Four Kinds of Constitutional Liability Rules

I’m back from my trip, so I thought I would post something more substantial.  I’m analyzing situations where constitutional rights are protected by a liability rule as opposed to a property or inalienability rule.  Since law professors like to express themselves in “four-box” frameworks, here are the four in my paper.

Box #1 — An individual right protected by a liability rule.

This is your standard Section 1983 tort suit or claim under the Takings Clause.  The government can violate your right but must pay damages if it does.  (Qualified immunity, of course, complicates this.)

Box #2 — A government right protected by a supermajority rule.

This is a situation is which a government official or institution has an entitlement that can be “purchased” without the owner’s consent by other government bodies through an extraordinary procedure.  For example, a federal judge has life tenure, but can be removed through impeachment and conviction.  Courts have the right to hear habeas corpus petitions, but Congress and the President can suspend that authority in an emergency. The President has the right to veto bills, but that can be overridden by Congress.  And so on.

Box #3 — An individual right that can be taxed.

The opposite of a tort suit is a tax.  In Box #1, the government pays damages for invading your rights.  In Box #3, you must pay the government to exercise your rights.

This is a type of regulation that is not popular these days (consider the poll tax), but it ought to get more consideration (especially in the context of campaign finance), as I will explain in a subsequent post.

Box #4 — A government right that can be exercised only after paying a penalty.

The opposite of protecting a government body or official through a supermajority rule is saying that an institution must pay a political price to invoke its authority.  Section Two of the Fourteenth Amendment is the best example, as it said that states retained the authority to bar African-Americans from voting but would receive fewer seats in the House of Representatives and the Electoral College if they did.

Boxes #1 and #2 are familiar.  Boxes #3 and #4 are more unusual and will be the focus of my paper (I’m going to call this “Constitutional Taxes,” I think.)


Parliamentary Procedure

I took a tour of the House of Lords and the House of Commons today, and the guide insisted that I could not wear a hat inside the Palace of Westminster.  (Those damn Americans–we never show any respect!)

Anyway, I thought I’d share this classic exchange from about twenty years ago that I found in a book at the gift shop:

MP for Knutsford:  I am not raising a point of order, Mr. Speaker.  I am raising a point of order on points of order that are not points of order.

The SPEAKER:  Points of order on points of order that are not points of order are not points of order.


Person vs. People

Over on Balkinization, I wrote a post raising questions about the Fifth Circuit’s decision earlier this week in United States v. Portillo-Munoz. which held that illegal immigrants are not part of “the people” protected by the Second Amendment.  More thought convinces me that this rationale is incorrect.

Here’s one problem.  The Supreme Court held in Pyler v. Doe that an illegal alien is a “person” for purposes of the Equal Protection Clause. If you say that “people” means something more than the plural of “person,” that creates an illogical distinction that turns on whether “person” or “people” is used in a textual provision, unless you try, as the Fifth Circuit did, to say that “the people” can mean different things in different parts of the text, which is hard to fathom and is not supported by any cases.

On the textual distinction, the word person is used in the Fifth Amendment with respect to grand jury indictment, double jeopardy, self-incrimination, takings, and due process. But the word people is used in the First Amendment, the Second Amendment, the Fourth Amendment, and the Ninth Amendment.

Now perhaps someone more clever than me can explain why an illegal immigrant should be compensated when the government takes his or her property but has no right to complain about an illegal search of the same property, but that does not make sense to me.

Here’s another problem.  The Second Amendment was incorporated through the Due Process Clause.  If an illegal alien raises a Second Amendment claim against a State, does the use of the word “person” in the Due Process Clause supersede the contrary plural language in the Second Amendment?  The same question arises for the First Amendment or the Fourth Amendment.

I could go on, but the point is that the reasoning of the panel majority is flawed and will create considerable confusion.  I hope that a petition to hear the case en banc is granted.


Preamble to the Bill of Rights

People are familiar with the Preamble to the Constitution.  But not that many know that Congress included a Preamble in the Bill of Rights when it sent the proposed amendments to the States for ratification:

“The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added:  And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”

I think that this text is interesting in two respects.  First, the Preamble makes it clear that parts of the Bill of Rights are declaratory (this is not shocking, but you rarely see that sort of thing stated so openly). Second, I wonder whether the current interpretation of the Bill is consistent with Congress’s stated goal of “extending the ground of public confidence in the Government.”


Research Question

I am trying to locate two private manuscript collections in Florida that allegedly held Bingham materials at one point.  All the information I have on them is:

1.  Collection of Rev. Dr. John C. Spring (Winter Park, FL)

2.  Collection of R. Edward Chapman — Papers of Henrietta Houser (Miami, FL)

If anyone knows where these collections are, drop me a line.


The Origins of the Fourteenth Amendment

I’ve finished drafting Chapter One of the Bingham biography (only eleven more chapters to go!), so I thought I’d post up something interesting that I came across.

In February 1837, the Anti-Slavery Society of Cadiz (John Bingham’s home for most of his life) passed the following resolution:

“Resolved that while the advocates of emancipation are charged by slaveholders and their abettors, with endeavoring to destroy this Union, they themselves are the very men who are outraging it by destroying its basis, viz–the Constitution of the United States, which declares that ‘no law shall be made abridging the liberty of speech or of the press’ and also that ‘the citizens of any one State, are entitled to all the privileges and immunities of citizens in the several States’ and further that ‘no person shall be deprived of life, liberty or property without due process of Law.'”

While the textual quotations weren’t perfect (“liberty of speech”), in this resolution you have many of the ideas that showed up in the Fourteenth Amendment thirty years later.


John Marshall’s Nomination

One of our readers, Daniel Rice, sent me this picture that he took at the National Archives.  It is President Adams’ nomination of John Marshall to be Chief Justice.  I love how the nomination is framed as a second-best choice (John Jay said no, so I guess I have to pick this guy.)

Thanks to all of you who are regular readers!