Author: Gerard Magliocca


John Bingham and Unwritten Rights

I want to draw your attention to a superb article by Kurt Lash that came out in January about the Privileges or Immunities Clause.  The Article traces the evolution of John Bingham’s thinking during the drafting process that produced the Fourteenth Amendment and is something that any serious scholar of that period will have to address.

Two things struck me about Lash’s account.  First, Bingham never referred to Justice Bushrod Washington’s discussion of fundamental rights in Corfield v. Coryell as a guidepost for interpreting the Fourteenth Amendment. Second, Bingham insisted that the Privileges or Immunities applied the first eight amendments to the Constitution to the states and nothing more.

There are some important conclusions that follow from these observations (which, by the way, are consistent with my research thus far).  One is that the Court’s holding in Slaughterhouse was correct at least according to Bingham’s understanding of the text (i.e., common-law rights were not incorporated).  Another is that Bingham appears to have been hostile to the concept of unwritten fundamental rights.  One cannot say that he opposed all such rights, but his exclusion of the Ninth Amendment from the Fourteenth is telling, as was his refusal to cite Corfield when others did. He did say at one point that the Due Process Clause should be read against the backdrop of existing case law, which did recognize the concept of substantive due process, but that looks like the only time he said anything that could be construed as endorsing that doctrine.  No wonder Justice Hugo Black liked Bingham so much.  They shared a rather similar view of how the Fourteenth Amendment should be interpreted.


One View of the Progressive Era Amendments

My article on the Child Labor Amendment should be out soon, but I wanted to share my favorite quote from the paper. It’s from a state representative who opposed ratification of the Amendment and offered this view of the Nineteenth Amendment and the Eighteenth Amendment, which were ratified a few years earlier.

“They have taken our women away from us by constitutional amendment, they have taken our liquor away from us; and now they want to take our children.”

There’s a 1920s bumper sticker slogan for you!


Felix Frankfurter

In teaching con law this semester, I was struck by something that crosses my mind every so often. Felix Frankfurter was obviously an influential teacher, scholar, political advisor, and judge.  He was also a fearless advocate for liberal causes in situations such as the Sacco and Vanzetti case.

At the risk of incurring the wrath of Harvard, though, he was a terrible writer.  I wince every time I have to read one of his opinions.  They’re often meandering, filled with irrelevant commentary, and hard to understand.  His academic prose, unfortunately, isn’t any better.  (His colleague Robert H. Jackson blows him away in this respect.)

Indeed, I’d be hard pressed to name a single Frankfurter opinion that is influential today.


John Bingham on Japan (1895)

Bingham was our Ambassador to Japan from 1873 to 1885, and I recently came across this prophetic comment that he made to a Cincinnati newspaper after his retirement:

“I doubt very much whether Japan can realize the present anticipations of her future prosperity if she persists in a career of military and unjustifiable territorial aggression.  That’s always a risky experiment, and rarely comes to good.”

I’m still trying to figure out if Bingham’s work as a diplomat sheds any light on his prior career.


State Sovereignty

Here’s a theoretical puzzle to consider.  States possess a certain degree of sovereignty in our federal system.  Congress though, has the power to create a new state through ordinary legislation signed by the President.  This could be read to mean that the Federal Government is the source of state sovereignty and that the states are merely delegated that authority as if they were administrative agencies.

But that can’t be right.  The original 13 states were not created by Congress.  Moreover, once a state is created it gets the same rights as the existing ones. This creates an anomaly that did come up in the 19th century.  Congress could insist that a territory meet certain conditions to get statehood (Utah, for example, had to renounce polygamy).  Once a state was admitted, however, it could do whatever it wanted.  Now Congress could respond by declaring a state no longer republican, which would diminish, though not eliminate its sovereignty, but that’s never happened in the way that I’m describing.  So I’m not sure how any pre-admission bargains were enforced.  Makes me wonder if there’s a good article in just looking at all of the legislation admitting states since the Founding to see what I’d find.


Spring Break Potpourri

There were a few things that happened while I was away that I wanted to talk about.

1.  Bill Stuntz, who passed away last week, was a fantastic scholar and a terrific teacher.  I was his student in a seminar on Policing, and it was one of the best classes that I ever took.  And talk about a brave person.  His blog about his illness stands as an incredible memorial to the man.

2.  The Japanese earthquake, tsunami, and nuclear reactor leak demonstrate some important problems in risk analysis.  One common comment that you hear about the quake is that it was one of the strongest ever recorded.  The problem is that reliable records only go back about one hundred years.  We just don’t have enough data to determine how likely a 9.0 earthquake is in any given place (the same can be said about large volcanic eruptions, Category Five hurricanes, and other large disasters.) This makes sounds safety decisions about catastrophic events very difficult.

Moreover, unfamiliar risks cause more concern than familiar ones even when they are far less dangerous.  More people die every year from falling in the bathtub than from radiation exposure.  Nevertheless, the mere prospect of the latter causes panic (I was particularly perplexed by the people in the USA who were stocking up on iodine.  For what purpose?) that is itself quite harmful.

Finally, people always focus on what happened rather than what did not happen.  (A kind of availability heuristic). The most accurate headline about what happened is “Excellent Planning and Building Codes Limited the Death Toll to only 15,000.”  You won’t see that on the front page though.


The Wisconsin Senate

Perhaps I’m wrong, but it seems to me that what happened over the past few weeks in Wisconsin is no different than what happened last year with health care reform.  The minority party exercised its rights to block the bill under the prevailing supermajority rule (cloture in the U.S. Senate and the need for a quorum in the WI Senate).  The majority party then used a procedural tactic to get around the supermajority rule (budget reconciliation in the U.S. Senate and the stripping of fiscal aspects of the collective bargaining bill in WI).

What’s the difference?

UPDATE:  I’ll be offline until after Spring Break.


John Bingham on Birthright Citizenship

I am now turning my full attention to the Bingham biography, which means that I’ll probably be blogging less often.  One point that I came across yesterday, though, seemed worth sharing.  As readers of CoOp know, I wrote an article three years ago arguing that children born here to illegal immigrant parents are citizens under the Fourteenth Amendment and that any contrary constitutional interpretation is wrong.

It turns out that Bingham did make one significant statement about birthright citizenship.  In 1862, he spoke in the House of Representatives in favor of a bill abolishing slavery in the District of Columbia.  As part of that argument, he said:

“Who are natural-born citizens but those born within the Republic?  Those born within the Republic, whether black and white, are citizens by birth–natural-born citizens.  There is no such word as white in your Constitution.  Citizenship, therefore, does not depend upon complexion any more than it depends upon the rights of election or of office.  All from other lands, who by the terms of your laws and a compliance with their provisions become naturalized, are adopted citizens of the United States; all other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural-born citizens.  Gentlemen can find no exception to this statement touching natural-born citizens except what is said in the Constitution in relation to Indians.”

Cong. Globe, 37th Cong., 2d Sess. 1639 (1862) (statement of Rep. Bingham)

The crucial language here is “parents owing allegiance to no other sovereignty.” This could be read as an exclusion of children born here to illegal aliens (and was a statement I did not know about when I wrote my article).  I don’t think, though, that this is the best reading of the phrase.  There were two exceptions to the natural-born citizenship rule at common law (excluding slaves and Native American Tribes).  The first involved children of ambassadors, who clearly did owe their allegiance to a foreign power.  The second was for children of foreign troops occupying our territory, who were clearly not giving their allegiance to us.  My Article explains at some length why the second of these exceptions cannot be analogized to modern illegal immigrants.

Bingham’s description of parentage was probably just a restatement of the common-law exceptions.  Later in the same speech he cites Chancellor Kent’s research on birthright citizenship, which stated the same rule with the same exceptions.  I do not see the speech as an attempt to change the common law.  Nevertheless, this statement will surely show up in any brief arguing that the Citizenship Clause should be read more narrowly, and I think it’s my scholarly obligation to bring all relevant facts to the table.


No Standing to Challenge the Mandate

Some of the amicus briefs in the appeal of Virginia v. Sebellius to the Fourth Circuit have now been filed.  (This was the first District Court opinion holding the individual mandate unconstitutional.)  The most persuasive of these briefs in my book is this one arguing that the States do not have standing and that the opinion should be vacated without reaching the merits.

I’ll repeat what I’ve said here before.  If this were an ordinary constitutional case, no court would be deciding the substantive questions at this point.  The individual mandate does not come into effect until 2014 and that requirement has little or nothing to do with the States as States.  Litigants, judges, and a lot of scholars are just blowing past procedural and jurisdictional limits that they now find inconvenient.  Let’s hope the Fourth Circuit doesn’t do that.


Justice Arthur Goldberg

In some recent research, I’ve been struck by the high quality of Justice Arthur Goldberg’s opinions during his three years on the Court (from 1962-1965).  In Heart of Atlanta Motel, Inc. v. United States and Griswold v. Connecticut, for example, he wrote separate opinions that were more insightful than what the Court produced. His memo in Harper v. Board of Elections was much better than Justice Douglas’ opinion.  And he was the first Justice to raise constitutional questions about the death penalty.  (Justice Breyer was Goldberg’s clerk; so was Alan Dershowitz).

Unfortunately, Justice Goldberg allowed himself to be talked into resigning to become our Ambassador to the UN.  Lyndon Johnson, who was famous for his ability to persuade, wanted to put Abe Fortas on the Court and convinced Goldberg that the path to the White House rested with success at the UN.  (Writing that line just reinforces how absurd LBJ’s pitch was.) He also made some sort of empty promise to put Goldberg back on the Court if that didn’t work out.

Justice Goldberg resigned from the Court when he was just 57.  He lived until 1990, which suggests that under normal circumstances he would have served on the Court for more than two decades.  It’s fair to say that he’s probably the last Justice who will leave the bench to take another government post.