Author: Gerard Magliocca


Federal Assassination Law

The shooting of Judge Roll and Congresswoman Giffords raises an interesting point about federal jurisdiction.  It seems obvious that this attack would be a federal crime, but that is a recent development.  Until the 1960s, the assassination of a federal official was treated as ordinary state-law murder unless it happened in Washington DC or in a federal territory. The most famous example is Lee Harvey Oswald.  Killing the President in Texas was not a federal offense in 1963, just as it wasn’t in 1901 when Leon Czolgolz shot William McKinley in Buffalo and was convicted of murder in New York.  Indeed, this is why Oswald was being held in the local Dallas jail that made it so easy for Jack Ruby to do what he did.


Anchor Babies

In response to the announcement by various state officials that they will seek legislation that denies birth certificates to children born here to illegal immigrant parents. my friend (and college classmate) Jim Ho wrote this op-ed yesterday explaining why these proposals are unconstitutional.  I agree with Jim, as I explained in this article in 2008.


The Senate Reform Proposal

Yesterday the Democrats introduced their cloture reform package, and I’d give it about one cheer.  Here’s a brief rundown on what the Majority Leader proposed.

1.  End secret holds.  Good idea, though it won’t matter all that much.

2.  Reduce the maximum number of hours for debate on nominees once cloture is invoked from 30 to 2.  Also worthwhile, especially as I wrote an op-ed arguing for this change back in October. (No doubt that left them all quaking in their boots.)  This could make a difference for some judicial and executive nominations.

3.  Remove the need to invoke cloture on a motion to proceed.  Fine, though modest.

4.  The final item is the much-vaunted “talking filibuster” change.  Unless I’m missing something, this is basically a joke.  The proposal is that if a cloture petition fails, then the minority must hold the floor as long the item that was the subject of the cloture vote is the pending business.

This is no different from the current rules–it’s entirely symbolic.  If the Majority Leader does not withdraw a filibustered bill or nomination as the pending business, he can force the minority to hold the floor continuously.  The point is that he almost never chooses to do that.  The new “rule” doesn’t make that more likely.  It doesn’t say, for example, that the filibustered measure must stay on the floor for a certain period of time after cloture is rejected.  That would have more teeth.


Blocking Patents and Political Protest

I said before the holidays that I would do a series of posts about the free speech implications of patents.  One way to think about this issue is that a patent owner could restrict the use of a device or a tactic to those with an “approved” message (for example, liberals).  It’s a kind of viewpoint discrimination, to use the First Amendment parlance.

Another way to think of this is that a patent could be acquired for the sole purpose of stopping certain kinds of expression.  You could call this content discrimination or a sort of blocking patent.  I think this is really troubling once it’s combined with the expansion of patentable subject matter to business methods.  Here is an illustration:

Imagine that in 1960 business methods were patentable.  A segregationist group that is thinking outside of the box decides to apply for a patent on sit-in protests.  The patent is granted.  When the civil rights activists in Greensboro start their demonstration (at the lunch counter depicted above at the Smithsonian), they are sued for infringement.

Today, this is not an implausible scenario.  The question is not whether such a patent would be upheld by a court (probably not on non-obviousness grounds).  The question is whether a patent examiner could be convinced to issue the patent (probably yes).  That patent could then be used to bankrupt and harass people who are trying to exercise their First Amendment rights.

Interestingly enough, something analogous did happen in the 1960s.  Libel law, which is after all private law, was used in New York Times v. Sullivan to chill civil rights speech. The Court responded by holding that the enforcement of libel law by courts constituted state action for First and Fourteenth Amendment purposes.  If patent law had been used in the way that I’ve described above, would there have been a similar result?


The Common Law and the Monarchy

Greetings from San Francisco and the AALS Conference!  I went to Alcatraz this morning.  Fortunately, I was allowed to leave.

I like to ask my Torts students what judges use as their authority for making common-law decisions.  The answer is a statute.  Every state has a law that either adopts the common law of England as of July 4, 1776 or the common law as developed when the state was a territory.  In this sense, all common-law is statutory interpretation.

You can make a related point about the Crown.  The source of Elizabeth II’s right to reign is the Act of Settlement (enacted in 1701), which was designed to resolve the succession after the childless Queen Anne died.  Among other things, it bars any Catholic from being the monarch.  Thus, the Queen is really nothing more than the head of an administrative agency with a special religious test attached and without the Chevron deference.



One of the main objects of legal theory is to distinguish formal from operational authorities.  Not every case, of course, is equal.  Likewise, what influences courts is not always what “ought” to.  To take a simple example, Brown v. Board of Education is more important for the law on equal protection than the original understanding of the Fourteenth Amendment, even though text should ordinarily trump case law.

I’ve been thinking about this in the context of the 1960s.  Two points stand out.  First, there is a common understanding that 1968 was a crucial year.  And for good reason–the Tet offensive, the deaths of RFK and MLK, the chaos of the Chicago convention, urban riots, and the close election of Richard Nixon over Hubert Humphrey.  Yet there is no equivalent understanding of that year’s importance in constitutional law.  The closest attempt comes from Cass Sunstein, who argues that the 1968 election was decisive in the rejection of constitutional welfare rights.

Second, the 1960s was by far the briefest “constitutional generation,” as I use that term in my work.  Most of those periods (e.g., Jacksonian Democracy, McKinley Republicans), last about thirty years.  The Great Society/Civil Rights Era, though, basically started in 1964 with Lyndon Johnson’s landslide and ended in 1980 with Ronald Reagan’s victory. Why? The Vietnam War was probably a factor.  The realignment of the South created by the Voting Rights Act was another.

It is hard, though, to ignore the importance of the assassinations of two great leaders of the 1960s generation (three if you count JFK’s death).  The other day I talked about how the shooting of Huey P. Long in 1935 fundamentally altered the New Deal.  Long was the Robert F. Kennedy of his era–he died at 42 and was seen by many as the great champion of the poor.  How would the 1970s and 1980s, for example, have looked different if RFK and MLK had lived?  Maybe the answer is not at all, but it is worth considering.

This is my last post for the year.  Enjoy the holidays!



I am putting together a book proposal for The Forgotten New Deal, which I have posted about several times.  The centerpiece of that story is Huey P. Long–the regime that he built in Louisiana, his influence on the development of the New Deal, and the constitutional consequences of his assassination.  In a nutshell, his premature death had three effects:

1.  It removed a key political lever that was driving Franklin D. Roosevelt to the left.  In anticipation of Long’s presidential campaign in 1936 (either in the Democratic primaries or as a third-party candidate), FDR initiated a wave of reforms in 1935 (including Social Security and a wealth tax).  Once Long was dead, this pressure diminished and the pace of change slowed dramatically.

2.  It cut off a congressional inquiry into whether Louisiana was in compliance with the Guarantee Clause.  That investigation was launched (with the active encouragement of the White House) not long before Long was shot.  Absent the assassination, this process would have continued and made the Guarantee Clause a vital element of the New Deal Constitution. That, in turn, would have weakened judicial supremacy by giving Congress a greater role in shaping constitutional meaning.

3.  It delayed the incorporation of the Bill of Rights by decades.  Litigation was in motion challenging Long’s deprivation of fundamental liberties in Louisiana, and Congress might well have reached similar conclusions in its Guarantee Clause declaration.  These claims would have been much more appealing in the context of a personal dictatorship erected within a state.  When he died, these issues died with him.

In thinking about these issues recently, I think there’s a fourth category.  In 1938, FDR tried to purge the Dixiecrats (conservative Southern Democrats) from the Senate and got his head handed to him in a set of primaries.  This obviously set back the cause of racial justice and liberal reform for many years.

These same Senators, though, were terrified of Huey Long.  In part, that was because he single-handidly elected Hattie Carraway, the caretaker Senator from Arkansas, to a term in her own right in 1934.  (Carraway was the first woman elected to the Senate and was the widow of the previous Senator.)  Long’s campaign for Hattaway was a challenge to the authority of the Senate Majority Leader, Joseph Robinson of Arkansas.  Moreover, Long backed populist candidates to challenge other Southern incumbents.  This threat was so serious that these Senators were willing to support (or, at least, not obstruct) the use of the Guarantee Clause to stop Long, even though that was the legal bogeyman that was used by the Republicans to occupy the South.

In effect, a powerful Huey Long would have forced the Dixiecrats to either tow the White House line (in exchange for presidential support), or be pushed aside by progressives.  I still need to think through the implications of that counterfactual.


Filibuster Reform

I am encouraged by the growing chatter about cloture reform.  On the first day of the new Congress (January 5), the Senate could force a vote on a motion (that can’t be filibustered) holding that a majority can change the rules by confirming or rejecting a ruling by Vice-President Biden (acting as the presiding officer).  If this threat is credible enough, a two-thirds supermajority may come together to stave off radical reform and make a series of more modest (but still helpful) changes to Rule 22.  Stay tuned.


The People’s House

I don’t have an opinion about the merits of the tax compromise that is now being debated in Congress.  One aspect of that debate, though, is rather striking–the Senate is now effectively superior to the House of Representatives.  In other words, the recent pattern is that no matter what the House wants in a controversial bill, the Senate just ignores that and says, “Well, you can either have no bill or whatever 60 of us support.”  And the House caves in to this demand every time.

When will the House grow tired of getting rolled?