Author: Gerard Magliocca


Total Incorporation and Small Claims

I was thinking the other day about the consequences of incorporating the remainder of the Bill of Rights. Take the Seventh Amendment, which remains unincorporated. If that is applied to the states, then would that not mean that most of the small claims courts in this country would be illegal? The Seventh Amendment says (at least under the Court’s current view) that there is a civil jury trial right in cases involving more than $20. Small claims courts, of course, have no juries. And I think that most, if not all, states, require that claims under a certain amount must be heard there.


The Status of the Bill of Rights

Today’s oral argument in Times v. Indiana strongly suggest that the Supreme Court will incorporate the Excessive Fines Clause of the Eighth Amendment. On the eve of Bill of Rights Day, the comments from Justice Gorsuch and Justice Kavanaugh were especially interesting.

Justice Gorsuch said at one point: “[Most of the incorporation cases took place in the 1940s. … And here we are in 2018 still litigating incorporation of the Bill of Rights. Really?” Justice Kavanaugh added: “Isn’t it just too late in the day to argue that any of the Bill of Rights is not incorporated?”

These comments indicate that there is nothing left to selective incorporation except the selective grant of certiorari. In other words, in practice the Supreme Court accepts that everything in the Bill of Rights is fundamental  The few provisions that remain outside of that circle (for example, grand juries and civil juries) will only remain unincorporated because the Court will choose not revisit its nineteenth century cases that so held.  The Bill of Rights has scaled the constitutional heights in the way that John Bingham and Justice Hugo Black foresaw long ago.



Memoir of Justice Stevens

Justice Stevens is publishing a memoir in April. According to a New York Times article on the book, the Justice provides some behind-the-scenes discussion of at least one decision (Heller) from his time on the Court where none of the Justice’s papers are available.

This leads me to make a modest suggestion. Justice Stevens should release (when the memoir comes out in April) any materials from his papers that he relies upon in the book. For instance, he says that he circulated a draft dissent in Heller before Justice Scalia circulated his draft opinion. Let’s see that. He also says he persuaded Justice Kennedy to ask Justice Scalia for changes in Heller. What is that assertion based upon?

I think that these are fair questions. How can the accuracy of his accounts of the Court’s internal deliberations be assessed without access to the primary sources?


Citations to the Preamble

In reading through Bushrod Washington’s opinions, one practice of note was his citation of the Preamble as authority. For example, in a case involving a state law, he said something along the lines of “This law cannot be valid because the Constitution was meant to create a more perfect union.”

Makes me wonder if there’s a paper (perhaps already written) on the original public meaning of the Preamble. Or the way in which the Preamble was cited.



Breaking Ties in Legislatures

I came across something interesting today. When the House of Commons has a tie vote, the Speaker breaks the tie. (In the British Parliament, the Speaker is a non-partisan parliamentarian rather than a party leader.) In doing so, the Speaker follows a convention to always vote against (1) motions that would curtail debate; (2) amendments to a bill; and (3) final passage of a bill. The theory behind this is that only a majority should be able to do any of these things, and a tie means there is no majority.

Contrast this with the practice in the United States Senate. The Vice-President just votes as he thinks best (though, in practical terms, he takes the position of the President). John Adams established this precedent in casting the first vote to break a tie. I wonder to what extent Adams thought about this.


One Further Thought on the OLC Memo

In Noel Canning, strong evidence was presented that recess appointments were understood originally to mean the recess between sessions of the Senate. From this point, it follows that Congress could (and probably had to) give the President the power to make interim appointments during a session when the Senate was on a break. Thus, there was no conflict between the two so long as the interim appointment was time limited or there was some clear norm that a formal nomination would quickly follow for Senate consideration.

Given the modern interpretation of the Recess Appointment Clause (in other words, that these picks can happen whenever the Senate says that it is in recess), and the fact that a President might want to avoid Senate confirmation for one of these positions, I think that there is a conflict or a problem. In practice, though, if Whitaker does nothing of consequence until a nominee is chosen, then I doubt a court will gainsay the OLC Memo’s conclusion.


The OLC Memo on the Acting Attorney General

The memo is very thorough, and I’m almost convinced that the Whitaker appointment is legal. Here is my remaining constitutional question.

I’m still not clear on what the point of a recess appointment is if the President can simply make an “acting” appointment. One thought is there is some profound difference between being the “acting” somebody and the real somebody. In formal terms, though, I do not see why that is the case. Now you could also say that the “acting” appointment is more time-limited than a recess appointment. But that’s not true when, as in this case, we are near the end of a Congress.

My position is that Whitaker is lawfully the Acting Attorney General today, but that his appointment can only run until the end of this Congress. To say that a statute can grant an “acting” appointment beyond the duration of a recess appointment strikes me as wrong. If any of the examples cited in the memo actually did that, though, then I would have to reconsider my position.


Andrew Johnson in Messages and Papers of the Presidents

In my edition of Messages and Papers, here’s part of the essay on Andrew Johnson, which gives the standard view of him in the 1920s.

“In integrity of purpose, in personal and moral courage, in intensity of patriotism he has no superior among our Presidents. That his impeachment marks one of the most dangerous epochs of American history there can now be no question among people whose opinion is at all worthy of respect. Even intelligent Republicans now take this view of the matter. Not long since in a lecture before a college in this city, Mr. Justice John M. Harlan, of the Supreme Court of the United States, stated that as his opinion. He is certainly a competent witness. . . .

If a true history of the United States is ever written, while Andrew Johnson will not stand in the front rank of American statesmen, he will unquestionably stand in the front rank of American patriots. He did more, and risked more, to preserve the Union that was done by all the men combined who voted for his conviction.”


Call For Papers

ALPS will hold its 10th Annual meeting at Syracuse University, in Syracuse New York, May 16-18. The dates include a pre-conference reception on the evening of May 16; full day meetings on May 17-18, each with continental breakfast, lunch, and light reception; and an optional field trip during the day on May 16. Field trip detail will be available prior to registration and tentatively include a visit to the Oneida Indian Nation of New York. The Oneida Indian Nation is one of the original members of the Haudenosaunee people (also known as the Six Nation of the Iroquois). 
Paper submissions on any subject related to property law and the practices that shape property norms and institutions are welcome. ALPS has a strong commitment to international and interdisciplinary diversity, and paper topics reflecting that commitment are encouraged. ALPS accepts both individual paper submissions and proposals for fully formed panels (usually 3 to 4 presenters, sometimes including films or multimedia outputs). Individually organized sessions of full panels may have as few as 3 presenters; all sessions with individually submitted papers will typically have at least 4 presenters. Submissions may be of full paper drafts and completed projects, or early works-in-progress. 
More details are available here  

Jury Unanimity in Criminal Cases

One interesting result yesterday was that Louisiana approved a state constitutional amendment providing that juries must be unanimous to convict a defendant of a crime. This means that only one state–Oregon–says that in some criminal cases there can be a conviction without a unanimous jury.

In a fractured decision 46 years ago, the Supreme Court held that the Sixth Amendment as incorporated against the states permitted non-unanimous jury verdicts in criminal cases. If a case arises from Oregon presenting this question, the Court should grant review and make clear that the Sixth Amendment requires unanimous jury verdicts in all criminal cases. There is, though, a chance that Oregon will reform its own law and render the issue moot.