Author: Gerard Magliocca


John Bingham


After I finish my book on Populist and Progressive era constitutionalism, my next book will be a biography of John Bingham (1815-1900), the principal drafter of Section One of the Fourteenth Amendment. It’s a bit daunting, as I’ve never written a biography before and much of the relevant material is scattered around the country. Nevertheless, given his importance (Hugo Black called Bingham the “James Madison of the Fourteenth Amendment”), he really deserves a full-fledged biography (not to mention an HBO miniseries, if anyone wants to buy the rights from me). There was one written by Erving Beauregard about twenty years ago, but it is pretty obscure and was based on an inaccurate view of Bingham’s role that dates back to Charles Fairman’s flawed scholarship in the 1940s.

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Filibuster Reform

The latest kerfuffle in Washington involves the threat of a filibuster against the nominations of Dawn Johnsen (to head the OLC) and Harold Koh (as the State Department Legal Advisor). My view is that every filibuster of a nominee on the executive calendar, with the possible exception of a Supreme Court Justice, is wrong. It was wrong when the Democrats did it to Miguel Estrada and President Bush’s other judicial nominees, and it would be equally unfair if done to Johnsen and Koh.

The problem, I think, is that the costs of a filibuster (on the nominees and on democratic values) are not fully internalized by the Senators engaged in that practice. In other words, it is now too easy to mount a filibuster. I am not suggesting that filibusters be abolished or that the number of Senators required to invoke cloture be reduced. A little history will help explain my approach.

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Presidential Right of Publicity

There was an article yesterday about the company that sells the “Chia Obama,” which is like the “Chia Pet” that you slather with seeds and then water to make a boring ceramic figure look slightly less boring. (As I tell my intellectual property students, not all lucrative inventions are complex. Go ask the inventor of the pet rock.) The news was the Chia Obama was pulled from stores because the firm concluded that the product was inappropriate for its image.

This raises a broader question, which is to what extent, if at all, can the President control the use of his image for commercial purposes. Traditionally, politicians have operated on the assumption that there is no such thing as overexposure. Teddy Roosevelt was famous for delighting in the appearance of his likeness on all sorts of goods, culminating with the borrowing of his name for the teddy bear. Nevertheless, a spokesperson for the Obama Administration told Bloomberg News in February: “Our lawyers are working on developing a policy that will protect the presidential image while being careful not to squelch the overwhelming enthusiasm that the public has for the president.”

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Why You Should Take Admiralty

I wasn’t planning to talk about admiralty this month, but as Nate suggested that I do so I thought I’d give it a whirl. I am teaching the course this semester, and it is without a doubt my favorite. So let me tell you why it’s a great class to take if you’re in law school now.

1. Admiralty is a great review course for the basic common-law subjects. You examine contract, tort, property, and civil procedure rules that are somewhat different from those on land, which forces you to think about the principles underlying those concepts. For example, maritime contracts are not covered by the Statute of Frauds, many admiralty actions do not allow for a jury trial, and the but-for causation presumption from a violation of a safety statute is stronger here than in ordinary negligence.

2. Admiralty is a leading body of international law. Those of you with a bent towards that subject would probably find a lot to learn here about how that doctrine gets crafted. Moreover, there are specific subjects, such as the treatment of piracy, that bear on current problems like terrorism.

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John Hope Franklin 1915-2009

I wanted to note the passing of John Hope Franklin, the great historian of the African-American experience in this country, who passed away last week. Professor Franklin was part of Thurgood Marshall’s team during the Brown litigation, and his 1947 book “From Slavery to Freedom: A History of American-Americans” is still considered a classic in the field.

I had the pleasure of meeting Professor Franklin three years ago when I was doing research at the FDR Library in Hyde Park. The reading room there is rather small and only a few people were there when he came walking in with a librarian who blurted out, “Hey, everybody! It’s John Hope Franklin.” We all went over to chat and he couldn’t have been more gracious, asking me about my work in detail. (He did seem a tad disappointed when I told him I was a lawyer rather than a historian, but that passed quickly.) I was struck by his approach because I’d seen an interview with him not long before where he explained that as a young man he met W.E.B. Dubois, who was pretty nasty and dismissive towards him — a lowly graduate student. He made sure not to treat others that way.

John Hope Franklin led an exemplary life as a scholar and a citizen. We can all aspire to that standard, but it’ll be hard to match.


Time Limits on Judicial Opinions

Here’s an idea that I’m working on for an article. (I have no draft to plug shamelessly yet.) Many statutes have a sunset or duration clause that sets an expiration date for their provisions. Why not judicial opinions? Neal Katyal (now at the SG’s Office) suggested this in a piece a few years ago with respect to national security cases. And the Supreme Court invoked something like this when it held that the use of racial preferences in law school admissions was constitutional but might not be in twenty-five years. I’m interested in why duration clauses are not used in opinions, and whether extending the idea to the judiciary is a good idea. (For simplicity’s sake, let’s limit the discussion to the Supreme Court, as it’s unlikely that a judicial sunset would be appropriate anywhere else.)

Many of the factors that motivate legislators to impose sunset clauses apply to the Court. For instance, statutes might be time-limited because people are uncertain about how a proposed rule will work in practice, or because there are concerns about cognitive bias when a law is passed in an emergency. A duration provision can also be a tool to garner votes from members who have doubts about the underlying substance of the bill. All of these interests could be present in a case. The Justices are often uncertain about the real-world consequences of their rulings, make decisions under crisis conditions, or struggle to forge a consensus. Thus, there are probably some circumstances where adding a sunset clause limiting the effect of a holding to, say, ten years would have merit. Of course, the Court reviewing a holding after the time limit expires would be free to retain the holding. It would just not be bound to do so under the principles of stare decisis.

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Congressional Vacancies

Following Illinois Governor Rod Blagojevich’s appointment of Roland Burris to the Senate, Russ Feingold proposed a constitutional amendment that would require an election to fill any Senate vacancy. This is a sound proposal that would enhance democratic values and limit the possibility of corruption.

Since 9/11, many scholars and members of Congress have supported a proposed “Continuation of Government” constitutional amendment. Vacancies in the House of Representatives can only be filled by a special election. Concerned that a terrorist attack could kill hundreds of House members and thus leave us without a functioning Congress for weeks or months, this amendment would permit a state to appoint replacements for dead or incapacitated House members until a special election can be held. This is a thoughtful plan to address a gap in the constitutional design in the event of a catastrophe.

Perhaps you like only one of these ideas or neither one, but the important point is that they can’t both be right because they contradict each other. Revising the Feingold proposal to allow gubernatorial appointments in emergencies would resolve the problem. This is the effect of the Ethical and Legal Elections for Congressional Transitions Act (ELECT) that was introduced in the House two months ago. The bill would require states to hold a special election for a Senate vacancy within ninety days but would allow a Governor to appoint an interim Senator until that election.

The problem with using legislation to accomplish the goals of the Feingold amendment is that it is not clear that Congress has the authority to overcome the language of the Seventeenth Amendment that permits gubernatorial appointments for Senate vacancies until the vacant term ends. ELECT’s sponsors argue that their bill falls within the power of Congress under Article One, Section Four to regulate the “Time, Places, and Manner” of Senate elections. I am skeptical that this interpretation is correct, but I defer to those with more expertise in election law.


Constitutional Problems Under Nationalization

I want to thank Dan for inviting me to join the blog this month. My friends and family also thank him for relieving them of the exclusive burden of hearing my crazy ideas.

One of the major issues confronting the Obama Administration is how to fix the financial system and other industries that are reeling from the Panic of 2008. In several instances, firms that were deemed “too-big-to-fail” were nationalized to prevent a disorderly bankruptcy (Fannie Mae, Freddie Mac, and AIG) and in other cases the specter of nationalization looms (Citigroup, Bank of America, and General Motors). While I certainly hope that these takeovers will be few and brief, there is a real prospect that this will not be the case. And this presents a constitutional problem.

Put simply, there is almost no precedent for direct governmental ownership of private firms. The Populist Party of the 1890s, which is the subject of my next book, campaigned on a platform of nationalization, but that effort failed (or was just way ahead of its time). The Tennessee Valley Authority raised some questions about active state participation in the marketplace, but they were never really resolved. As a result, lawyers may be forced to think about some difficult issues over the next few years without much guidance. Here are some examples:

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