Author: Gerard Magliocca


Presidential Declassification of Information

I just wanted to observe that the recent controversy over the President’s alleged disclosure of classified information to the Russian Foreign Minister was discussed in analogous way by an episode of “Yes, Prime Minister.” Prime Minister Hacker and Sir Humphrey have a conversation after Bernard Wooley tells the press (in a garbled way) that the PM is above the law with respect to the disclosure of information under the Official Secrets Act.

The PM: We must do something to improve my relations with the press, which deteriorated considerably when my private secretary told them I felt I was above the law when it came to official secrets. What’s the constitutional position, Humphrey?

Sir Humphrey: Well, in a sense, Bernard was right. The question, in a nutshell, is what is the difference between a breach of the Official Secrets Act and an unattributable, off-the-record briefing by a senior official? The former-a breach-is a criminal offence. A briefing is essential to keep the wheels turning. Is there a difference or is it a matter of convenience and interpretation? Is it a breach of the act if there is an unofficial, non-attributable briefing by an official who’s been unofficially authorised by the Prime Minister?

Sir Humphrey: Not if it’s been authorised by the PM, no. I should decide if it’s in the national interest for something to be disclosed, not officials. Last week’s leak must’ve come from an official.

Sir Humphrey: But what if the official was officially authorised or even unofficially authorised? What if the PM officially disapproves of a breach of the act, but unofficially approves? Then a leak would be unofficially official, but officially unofficial.


Thomas Marshall’s Dilemma

Fantasies never die. The one that comes up more frequently than most is that Vice-President Pence, the members of the Cabinet, and supermajorities in both Houses of Congress are going to somehow invoke the Twenty-Fifth Amendment and remove President Trump from office. There are a million problems with this thought, but let’s focus on just one.

Even when we had a President who was disabled by a stroke at a time when immense political issues were being debated, neither the Vice-President nor the Cabinet (let alone Congress) acted to remove him.  I’m talking, of course, about Woodrow Wilson. Granted, President Wilson’s colleagues did not have the benefit of the Twenty-Fifth Amendment or any helpful precedents, but still their collective response to Wilson’s illness was passive to the point of denial.

Vice-President Thomas Marshall (a Hoosier, I might add) took the position that he would assume the Presidency only if a joint resolution of Congress, Mrs. Wilson, and Wilson’s doctor all agreed that Wilson was unfit to serve.  This was an impossibly high burden that was probably designed to avoid that outcome. Lots of people in Washington knew that Wilson could not think things through clearly, but virtually nobody said that publicly. If not then, why now?


Is Justice Story Overrated?

This is a question that I am asking myself as I begin researching the life of Bushrod Washington. The typical story about the Marshall Court is that Marshall and Story towered above everyone else. Part of Justice Story’s reputation rests on his voluminous scholarly writings, most notably his 1833 treatise on constitutional law.  But if you look at his judicial opinions, the record is quite mixed.

Aside from Martin v. Hunter’s Lessee, it’s hard to think of a great Supreme Court opinion by Story. By contrast, I can think of two that were terrible (Prigg v. Pennsylvania and Swift v. Tyson). As a circuit Justice, Story did write some important decisions (such as the one that essentially created the copyright fair use doctrine), but over 34 years you’d expect more given his importance.

Moreover, I see indications that Justice Story made mistakes that Washington had to clean up.  For instance, Story’s 1821 opinion for the Court in Green v. Biddle was so poor that it led to a rehearing where Washington (in 1823) wrote a new opinion reaching the same result. (Justice Washington was ill when Biddle was decided the first time.) As my research progresses, I’ll flesh this out.


Presidential Chats With An FBI Director About Investigations

The Deputy White House Press Secretary is asserting on television that that “legal scholars” are saying that it was not inappropriate for the President and the FBI Director to discuss whether the President was under criminal investigation. These “legal scholars” are not named.  (Indeed, they sound like the “top men” that are researching the Ark of the Covenant).

The Deputy White House Press Secretary’s statement is incorrect.  It was not illegal for the FBI Director and the President to have these conversations standing alone.  But it was inappropriate.


The Six Stages of Scandal

This is a classic that I bring out once every couple of years to describe the political crisis du jour. Now it’s Donald Trump’s turn.

Stage 1:  That’s ridiculous.  It can’t possibly be true.

Stage 2:  It’s not true.

Stage 3:  You can’t prove it’s true.

Stage 4:  Why are you trying to prove it’s true?

Stage 5:  It’s disgusting that you proved it’s true.

Stage 6:  What’s the big deal anyway?


The Inner Workings of the Marshall Court

A big part of my Bushrod Washington research will be on the Marshall Court. Chief Justice Marshall and Justice Washington served together for twenty-eight years. They were once described by Justice Johnson (in a letter to Jefferson) as “one judge.” For the most part, this has been taken to mean that Washington basically just silently followed the Chief’s lead.

Of course, there is another way of interpreting this “one judge” description. Perhaps they were more like partners. This would throw Washington’s role on the Court into a different light, since the great Marshall opinions (for example, Marbury or M’Culloch) would look more like joint efforts. We now know that Justice Brennan exerted a considerable influence on the Warren Court even though his name was not always on the opinions. (Justice Van Devanter did something similar for the Taft Court.) We lack, though, a clear written record of what went on behind-the-scenes in the Marshall Court, though I’ll try to find more.  Some of that was due to the unusual living arrangements of that Court (they all shared the same boarding house and table) which meant that many of their debates were oral and probably interspersed with toasts.

Lawyers still have a romantic notion that John Marshall did everything himself. Indeed, I get the sense that some of Marshall’s biographers (notably Beveridge) talked Washington down to talk Marshall up. The Chief Justice certainly did a lot by modern standards, but most of the decisions were unanimous because the other Justices had significant input into the result. Washington (before Story’s arrival) was probably the leading force in this respect, and even afterwards he was probably formidable. Can I take this from a hypothesis to proof? We’ll see.



Judge Kevin Newsom

The New York Times is reporting that the President will nominate Kevin Newsom, the former Solicitor General of Alabama, for a seat on the Eleventh Circuit.  This is wonderful news. I met Kevin nearly twenty years ago when we were at the same firm (and shared the same office suite). He is an outstanding lawyer and a person of incredible integrity. (And wrote a terrific article in Yale Law Journal on the incorporation of the Bill of Rights). If we didn’t live in such a polarized age, he would be confirmed unanimously by the Senate. I will do what I can to make that happen.


Why Write About Bushrod Washington?

Before I unleash the barrage of details about Justice Washington, I want to explain the themes that are motivating me to write this book.

  1. I’ve never written about the Founders. A biography of Washington is a fresh way of doing that for a few reasons. First, there will have to be a lot of George Washington in this book. Second, Washington was a delegate at the Virginia ratifying convention in 1788. Third, he knew and corresponded with all the usual suspects (Jefferson, Madison, Lafayette, to name just three).
  2. I’ve never written about the Marshall Court.  This book will, of course, talk a lot about that.
  3. I’ve never written about slavery from the perspective of a slaveowner. This is a more complex point that I will need to wrestle with for some time. Washington’s relationship with slavery was tortured.  He may have fathered a child with a slave. He was the first president of the American Colonization Society, which supported gradual abolition and deportation to Africa. He ruled in favor of slaves from the bench and carried out George Washington’s wishes to free his slaves. On the other hand, he later brought slaves back to Mount Vernon and sold some in a way that broke up families. Even worse, he defended this conduct is a particularly nasty way.
  4. I’ve never really written about Corfield v. Coryell and the Fourteenth Amendment. In my Bingham book, I noted that Bingham was not a big fan of Washington’s opinion defining the privileges and immunities of national citizenship. Many other members of the Thirty-Ninth Congress, though, were very keen about the opinion, and I need to grapple with that.

Our Unconstitutional Reapportionment Process

I thought I would post the Introduction of the paper that I’m now writing. I’ve taken out the footnotes to make this short enough for a long post, though I’m happy to share those if asked. Hopefully the draft will be complete by August.

Determining how many members each state is entitled to in the House of Representatives is among the most routine constitutional tasks. Every ten years, a census is conducted under the auspices of the Commerce Department. When the census is complete, the Department enters the state and national population information into a mathematical formula that was fixed by Congress in 1941, and the formula generates a representative total for each state. These state tallies are sent to the President and are certified by him without any congressional action or any exercise of administrative discretion. Though the counting method in the census and the allocation formula for representatives were the subject of unsuccessful court cases in the 1990s, the ministerial nature of the modern reapportionment process is taken almost entirely for granted.

This Article argues instead that the current mechanical system for redistributing congressional representatives violates Section Two of the Fourteenth Amendment. Section Two provides that if the right to vote in federal or many state elections is “denied” or “in any way abridged” by a state for a broad class of presumptively eligible voters, then that state’s delegation in the House of Representatives shall be reduced in proportion to the amount of disenfranchisement. Consistent with this requirement, the first census taken after the Fourteenth Amendment was ratified tried to ascertain the number of people who fell within Section Two’s definition. The resulting data was then forwarded to Congress and was discussed in floor debates as part of the reapportionment legislation enacted in 1871.

Under present law, by contrast, the Commerce Department is barred from considering Section Two in assessing how many representatives each state should get. While the census can ask Americans about their voting eligibility and behavior, the formula that Congress created to delegate its reapportionment authority does not include a Section Two variable. The current state regulations of voting rights may not require the imposition of any representation penalty, but the imposition of such a penalty cannot be precluded no matter what the facts are. It is axiomatic that Congress cannot erase a constitutional requirement through ordinary legislation, but that is exactly what the reapportionment statutes do given that Section Two of the Fourteenth Amendment says a representation penalty is mandatory if the suffrage rights of a sufficient percentage of the relevant population within a state are “in any way abridged.”

My claim that the reapportionment law in place since World War II is unconstitutional may seem unbelievable, but that reaction might fade after learning that the same point was made in the civil rights era. In the early 1960s, there was growing interest in Congress’s failure to enforce Section Two of the Fourteenth Amendment against the flagrant exclusion of African-Americans in the South. Indeed, there was a specific demand from the 1963 March on Washington led by Martin Luther King Jr. for the “[e]nforcement of the Fourteenth Amendment—reducing Congressional representation of states where citizens are disfranchised.” As part of this brief renaissance, a handful of scholars observed that the automatic system of ascertaining that representation violated Section Two and litigation was filed in the District of Columbia seeking a declaratory judgment that would invalidate the reapportionment statutes. Following the enactment of the Voting Rights Act in 1965, however, academic interest in the Section Two issue evaporated and the litigation was dismissed on prudential grounds pending “appraisal of the effectiveness of the new Voting Rights Act.”

Though the Voting Rights Act and its subsequent amendments did not fix the constitutional flaw in the reapportionment process, the Supreme Court’s 2013 holding in Shelby County v. Holder that the Act’s preclearance requirement cannot be applied to the jurisdictions that were designated by Congress makes that flaw more visible. After decades of neglect, it is time to treat Section Two of the Fourteenth Amendment with respect. Congress must revise the reapportionment statutes and at least permit the Commerce Department to take Section Two into account. If Congress takes no action, then a state with standing to contest the result of the next reapportionment should raise a Section Two objection and the Supreme Court should hold the reapportionment void.

Part I explores the history of congressional reapportionment and describes the contemporary process. Part II discusses Section Two of the Fourteenth Amendment, how that provision was applied when Congress conducted the first reapportionment after ratification, and the short-lived revival of interest in Section Two’s role in that process during the 1960s. Part III explains why the current reapportionment framework is at odds with Section Two and why a judicial declaration to that effect is proper.