Author: Gerard Magliocca


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.


Employment Division v. Smith

There was a story yesterday about an effort to put a proposition on the San Francisco ballot that would ban male circumcision of children.  Advocates of the ordinance consider the practice a form of child abuse.  Jewish groups, naturally, are opposed.

If such an ordinance were approved, it seems clear that it would be constitutional under the Supreme Court’s analysis in Employment Div. v. Smith.  Smith held that “the right to free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”  In other words, the fact that the circumcision of infant boys is central to the Jewish faith does not create a constitutional privilege from a local ordinance banning the practice (unless you could show that the law was intended as an attack on Jews).

I think that Smith was wrongly decided.  The reason it has stood for as long as it has is that only unpopular religions have been impacted by the case.  A neutral law that hurts a more popular faith (e.g., a total alcohol ban in a town that made holding Catholic Mass impossible) such as the proposed SF ordinance would, I think, lead to a swift about-face by the Court.

My book on Jacksonian Democracy discusses Smith because “disparate impact” and religion was raised during the Cherokee Removal crisis, though the Court was evidently unaware of this precedent when it decided Smith.  Georgia passed a statute that required all whites who wanted to enter the tribal area within the state to swear a loyalty oath to the State.  The Protestant missionaries who wanted to work with the Tribe refused and some were prosecuted and sent to jail.  Their supporters claimed that the Georgia law violated the freedom of religion (not as a federal constitutional matter, but in general). The Georgia legislature issued a report that essentially advanced the Smith rationale:

“The law which has excited so much feeling among our brethren of the eastern states is not partial or exclusive in its operation. . . . Our law in this, as well as other cases, aims at no individuals, and recognizes no exemptions.  Your committee therefore declare that no objection can be urged against the State, with any propriety, upon the score of its inequality, for the State made all men ‘equal under the law.'”

Overall, the debate about the imprisonment of the missionaries tends to undermine Smith, but I can’t do justice to that in a post.


Did the Hessians Get Benefits?

One fascinating aspect of the war in Libya is Qaddafi’s extensive use of mercenaries.  (A story today, for example, says that he just hired several hundred from Mali).

This leads me to wonder what mercenary contracts look like.  Are there bonuses?  What happens if you get captured?  If there is a breach, do you have a remedy?  If so, from whom?  Is it at will employment or for a fixed term?  Since mercenary troops have been around for centuries, this could a really interesting article (assuming that somebody hasn’t already written it).


Allgeyer v. Louisiana

One significant case that I discuss in my William Jennings Bryan book is Allgeyer v. Louisiana, 165 U.S. 578 (1897), which was the first Supreme Court case holding that the Fourteenth Amendment protected the “liberty of contract.”  I make two somewhat novel points about Allgeyer in the book.  The first is that the case came out within a few days of William McKinley’s inaugural, which is suggestive about the Court’s thinking in adopting this new doctrine that was partly an antidote to Populism.  The other is that Allgeyer overruled Slaughterhouse sub silentio, which set the stage for the Court’s subsequent reinterpretation of Slaughterhouse as an anti-incorporation case (in Maxwell v. Dow).

One thing that I did not do in the book that I now regret is discuss the merits of Allgeyer.  The case involved a state statute that regulated marine insurance contracts.  The Allgeyer firm contracted for marine insurance in New York with a NY company for ships that would never be in Louisiana, but the Louisiana courts held that this contract was governed by the Louisiana statute because the relevant documents were mailed to and from the state.  The Supreme Court held that this violated the Due Process Clause and contractual freedom.

This is an odd way to resolve the case.  Today I think we would say that a state law that was interpreted to act with broad extraterritorial reach runs afoul of the Dormant Commerce Clause.  I think that they could have said that then as well, since there were plenty of Dormant Commerce Clause cases at that point.  Perhaps there is some reason that they did not (e.g., the issue wasn’t raised in the briefs), but I wonder whether this means that the Court just crammed the liberty of contract into the first case that could bear that reading even when it wasn’t the best reading of the law.

UPDATE:  I’m now persuaded that since insurance was not viewed as commerce subject to federal regulation at this time, that means the Dormant Commerce Clause probably could not apply to this Louisiana statute.


Preface to the Paperback Edition

I thought I’d reproduce the brief Preface to the new edition of my Jackson book.


Reading a book that you wrote several years ago is like looking at a photo album.  Some things bring a smile to your face; others make you wonder what you were thinking about back then.  Unlike old pictures, a book can be changed, but it is better to avoid that temptation and let the work stand as is.  Nevertheless, I would like to make a few fresh observations about what you are about to read.

This book operates on two levels.  First and foremost, it is a constitutional history of Jacksonian Democracy.  The focus is on the two great controversies of the 1830s, which involved the Second Bank of the United States and the removal of the Cherokee Tribe from Georgia.  Obviously they were not the only significant constitutional issues during this period, and my treatment of the others, most notably the Nullification Crisis of 1832-1833, is more cursory.  Likewise, the discussion of what happened after the 1830s is largely limited to the fallout from the Bank and the Cherokee Removal debates, especially for the abolitionists and for the Supreme Court’s decision in Dred Scott.  Thus, this is not a comprehensive account of the law in the ante-bellum era, but it is a thorough examination of the most important subjects at that time.

The book also sets forth a theory about how the Constitution changes.  In that respect, this is a work in progress.  My central claim is that there is a regular pattern to how our higher law evolves.  This “generational cycle” takes approximately thirty years to unfold and is closely tied to the periodic realignment of the party system.  Each of these generational regimes evolves in a similar way, which opens the door for comparisons between otherwise unrelated events that share a common point in time within their respective generations.  Jacksonian Democracy is one of these distinctive constitutional periods, and in this book I examine the relationship between that regime’s early and late stages to show the cycle in action and to explore the powerful insights that come from using a temporal model.

An obvious problem with my approach is that one example is not enough to prove that there is an overarching structure to constitutional development.  So why didn’t I delve into other periods and provide more proof that there is a universal generational cycle?  The answer is that I think books should be short.  A few slim volumes, each organized around a specific topic, are far better than one tome.  Short books get read; long ones get praised and gather dust.  What you see here is the first part of my project.  The second part is a book about the Populist generation of the 1890s led by William Jennings Bryan, which was unsuccessful and triggered a massive backlash that endured as the constitutional settlement until the middle of the twentieth century.  The third one will cover the New Deal and expand on my discussion in this book about the role that luck plays in shaping legal principles during moments of generational transition.

Finally, I should say something about how the Obama Administration fits within the constitutional cycle.  My view is that the 2008 election marked the start of a new generational regime, but at this point it is impossible to say whether this should be called the “Yes We Can” or the “Tea Party” generation.  Historians are not fortunetellers. The 2008 result certainly looked like a political realignment similar to what occurred when Andrew Jackson took the White House in 1828, as Obama was the first Democratic presidential candidate to win a popular vote majority in over thirty years.  Like Jackson, President Obama used that mandate to push a transformative statute through Congress over intense opposition.  Unlike Jackson, though, Obama suffered a sharp setback in his first midterm election.  That may just be a bump in the road, but it is also possible that the backlash against President Obama will be the defining event for our generation.  Moreover, the Supreme Court is still waiting in the wings, and an opinion striking down health care reform as unconstitutional could make the difference.

One thing is certain—the generational cycle grinds on.  Abraham Lincoln told the nation during the Civil War that “[w]e cannot escape history.”  That’s why we need to keep studying it.


Radford and Huey Long

On May 27, 1935, the Supreme Court issued three anti-New Deal opinions in what came to be known as “Black Monday.”  The first was A.L.A. Schechter Poultry Corp. v. United States, which invalidated the National Industrial Recovery Act (NRA).  The second was Humphrey’s Executor v. United States, which held that the President Roosevelt had exceeded his authority by firing without cause a member of the FTC. The third was Louisville Joint Stock Land Bank v. Radford. which knocked down the Frazier-Lemke Farm Mortgage Moratorium Act for violating the Takings Clause. The Frazier-Lemke Act, in essence, allowed farmers in foreclosure to stay that proceeding in a bankruptcy court for up to five years, during the which the debtor could stay in the home paying rent and, if the lender consented, repurchase the property at its current value.

In reading Jeff Shesol’s excellent book on the contest between FDR and the Supreme Court, I stopped when he explained that Frazier-Lemke was “driven to passage by Huey Long.”  As you know, I’ve been researching the connections between Long and the New Deal, but I didn’t know that Long could be tied to Black Monday.  I’ll have to peruse the Congressional Record more closely to see what Long’s role was in enacting this statute.


The Power of the Purse

I mentioned the other day that I would do a few posts about my Jackson book that related to current events.  There is growing concern (especially if you’re a federal employee) about the possibility of a government showdown.  When we think about that kind of budget battle, of course, the first image that comes to mind is of the Gingrich-Clinton fight in 1995.  I’ve blogged about the 1879 battle between President Hayes and Congressional Democrats (“The Battle of the Riders”), and my book talks about the 1842 government shutdown crisis between President Tyler and Henry Clay, the leader of Congressional Whigs.  There is, however, another way to look at the problem.

Right now, you have different parties controlling Congress.  This is the same landscape that Andrew Jackson faced after his reelection in 1832.  In that circumstance, a broad statute cannot be enacted (somebody from the opposing party controls an important institution).  The result is that each party seeks creative unilateral solutions to advance their constitutional agenda.  In Jackson’s case, he removed the Treasury’s deposits from the National Bank (which he thought was unconstitutional) on his own authority because he knew that Congress could not stop him.  The Senate (under Whig control) responded with a “Censure Resolution” of Jackson for his unconstitutional actions, because it knew it could not get an impeachment through the House of Reps (under Democratic control). Jackson then responded with a “Protest” that vetoed the Censure Resolution.  All of this, naturally, was unusual, unprecedented, and described at length in my book.

Today we are starting to see something similar.  The House of Representatives is going to defund things that they think are unconstitutional (say, the individual mandate) with the thought that the President cannot force them to spend the money if the House stands firm.  The President, though, could respond with creative interpretations of the appropriations bills to move money into areas that the House will not fund. This could lead to a broader debate over the power of the purse, which (as I’ve said before) is likely to be the big constitutional issue of 2011.


Did He Get Tenure?

Saif Qaddafi (son of the Colonel) wrote his dissertation at the London School of Economics on “The Role Of Civil Society In The Democratisation Of Global Governance Institutions: From ‘Soft Power’ to Collective Decision-Making?”

HT:  Fouad Ajami