Author: Gerard Magliocca

1

Secret Service Investigations of Presidential Threats

Donald Trump’s recent comments about “Second Amendment people” raises an issue that I’ve wondered about for a long time. What standard does the Secret Service use in determining whether its agents need to contact someone who makes a threat against the President or a presidential candidate?  And what does the Secret Service do when they contact someone like that?

I ask these questions because there is a chilling quality to such a visit on political speech. Now the Secret Service does not visit every person who makes a crazy comment, as they lack the resources for that and correctly conclude that the vast majority of those statements are harmless. But are there written guidelines that help them assess this?  If so, what are they? And would there be a First Amendment claim, say against individual Secret Service agents, if someone felt that they were being unfairly targeted or harassed for things that they said?

7

Representing the Bill of Rights During the Cold War

Bill_of_Rights_1966_U.S._stamp.1Building on my prior post, I want to highlight this image. It is a stamp that was issued in 1966-67 to mark the 175th anniversary of the ratification of the Bill of Rights. The design was by Herb Block, the longtime political cartoonist for The Washington Post, and was called “Freedom Checking Tyranny.” The mailed fist on the opposite side of the open hand is meant to evoke totalitarianism, which at the time was widely understood as communism.

I also find it amusing that the quote on the stamp is not in the Bill of Rights (and, as far as I know, does not come from any famous speech or Supreme Court opinion).

2

The Future of the Supreme Court

Every four years the tired claim is trotted out that the winner of the presidential election could appoint three or four Justices. In fact, no President has appointed this many Justices in a single term since Richard Nixon, but this may be the year where hyperbole is true.

We know that there is one vacant seat on the Court, but consider what might happen if Hillary Clinton is elected.  Justices Ginsburg and Breyer would have to doubt seriously that the Democrats would win a fourth consecutive term in the White House, something that last occurred in the 1940s. Thus, they would have a strong incentive to retire in the next few years rather than wait until 2020 or beyond.  That would create a total of three vacancies without including any unexpected change (say, if Justice Kennedy also decides to retire). Of course, Breyer and Ginsburg could decide to go with the example of Justice Stevens and stay until they are 90 years old, but that is unlikely.

Note that if Ginsburg and Breyer retire (say over the next two years), that would make Justice Sotomayor the senior member of the liberal bloc–a rather amazing development for someone who joined the Court only seven years ago.

0

The Bill of Rights and the Cold War

I’ve been hard at work on my Bill of Rights book (three chapters to go), which explains my recent absence here.  I’ll have more posts coming up shortly, but I did want to mention one part of my ongoing research.

The final chapter of the book is about the Bill of Rights and the Cold War. In a symbolic sense, that connection can be seen in the fact that the original Declaration of Independence, Constitution, and an original parchment of the proposal from the First Congress that became our Bill of Rights were all descend each night into a vault that was designed to survive a nuclear bomb. More interesting, though, is that the party platforms that invoked the Bill of Rights after the Second World War almost always did so in the context of fighting communism.  For instance:

The 1956 GOP Platform: “We hold that the major world issue today is whether Government shall be the servant or the master of men. We hold that the Bill of Rights is the sacred foundation of personal liberty. That men are created equal needs no affirmation, but they must have equality of opportunity and protection of their civil rights under the law.”

The 1960 Democratic Platform: “With democratic values threatened today by Communist tyranny, we reaffirm our dedication to the Bill of Rights. Freedom and civil liberties, far from being incompatible with security, are vital to our national strength.”

I’ll have some more on this as the chapter gets written.

4

Innovations in the Law

I’ve just finished reading Robert J. Gordon’s excellent book on The Rise and Fall of American Growth.  Gordon’s thesis is that economic growth has slowed in recent decades because the pace of technological innovation has slowed from the 1870-1970 period.  In essence, his claim is that great inventions of the past (electricity, indoor plumbing, the car, antibiotics) were much more crucial to raising our standard of living than the more recent improvements of the Information Age.

This got me thinking about a related question in law.  To what extent has the pace of legal innovation slowed in recent decades?  In other words, most of the big ideas in law are quite old (judicial review, patents, administrative agencies to name just three).  What was the last big idea that changed legal thought or practice?  Originalism comes to mind, but that dates to the 1970s.  What else is there?

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The Indiana Governor’s Race

Now that Mike Pence is officially Donald Trump’s choice to be Vice-President, Indiana Republicans need to nominate someone else to run for Governor this Fall. I thought I would say something about the three prospects, as I know something about two of them. (One is the Lt. Governor, whom I do not know.)

First there is Congressman Todd Rokita, who is currently my representative in the House.  Congressman Rokita is an alumnus of the law school where I teach, though I did not know him in school.  What I can say, though, is that he’s a dunce who would be unable to serve effectively as Governor. He once called the Affordable Care Act the worst law in American history, evidently deciding that the Fugitive Slave Act was not as bad.  Enough said.

Congresswoman Susan Brooks is also a McKinney Law School alum, and I’ve had the pleasure of meeting her several times.  She’d be a terrific Governor, and I hope the GOP picks her.  She’s smart, practical, and good at building coalitions.

I should add, in the interests of full disclosure, that I gave money to the campaign of the Democratic candidate for Governor, John Gregg, who is also an alum of the law school.  If Brooks is picked I’ll vote for her.  If it’s Rokita or the Lt. Governor I’ll vote for Gregg.

6

Mike Pence

Media reports say that Donald Trump will select Indiana Governor Mike Pence as his running mate.  Since Pence is an alumnus of the my law school and I did meet him once, I thought I’d share my views.

Governor Pence is a serious man who takes his faith seriously.  He is very good at speaking clearly on issues where he has strong beliefs. He has not shown a penchant for the nuts-and bolts of administration since becoming Governor, but as Vice President that may not matter.

A more serious objection is that when the state passed a Religious Freedom Restoration Act that was deemed hostile to gays and lesbians, the Governor was totally out of his depth when questioned on the matter.  It was not something he had thought about in depth and so he floundered.  To my mind, this could become a liability in the campaign if you like Trump.  Trump is bound to say more controversial things between now and November, and I suspect Pence will not be good at thinking on his feet to defend those sorts of comments.

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Parliament and Brexit

Now that the Tories have settled on a new Prime Minister, there is a fascinating constitutional question that must be addressed in Britain: Can Brexit be triggered unilaterally by the PM or must there be an Act of Parliament? This is not a trivial matter, because it is unclear whether a majority of MPs would support Brexit if it were put to a vote.  (Let alone the House of Lords.)

The issue is partly about whether prior Acts of Parliament confirm or assume Britain’s EU membership in such a way that only another Act can repeal them. Another issue is whether the power to withdraw from a treaty (which is one way of thinking about Britain’s obligations to the EU) is part of the royal prerogative, which is the power that a PM can exercise without Parliament.  In the United States, the President must get congressional approval for a treaty (either through 2/3 of the Senate or a majority of each House), but he can unilaterally abrogate.  Is this true in the UK?  I’m not sure what the recent precedents say, but we’ll find out.

3

Guns and Public Service Announcements–Part II

The last post got a lot of comments, and so I wanted to follow-up.  One line of thought was “What if a local or state government launched a public campaign to discourage people from voting or believing in Islam?  How are those different from discouraging people from owning a gun?”

A couple of responses come to mind.  First, any of these kinds of campaigns could be unconstitutional  depending on what they said.  For example, if the message was “Don’t buy a gun or else . . .,” that would be coercive in a way that would violate the Second Amendment.  Second, something can be very wrong but still constitutional. Third, these rights are not equivalent.  Felons cannot own guns, but felons can (in most states) vote and (in all states) practice Islam.  So you can’t say that they all must be treated equally with respect to the validity of government speech discouraging them.

Let me add one more thought.  Suppose Columbine decided to use public funds for an anti-gun message.  Given the sad history of that high school, would you really say that the town would be prohibited from responding in that way?

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Justice Ginsburg Should Apologize

It is inappropriate for a sitting Justice to take sides openly in a presidential election, as the Justice did in her interview with Adam Liptak yesterday.  Even though it was safe to assume that she was for Hillary Clinton and was not a fan of Donald Trump, she should not say so in the media.  The younger Justice Harlan was right when he stopped voting after reaching the bench, because he said it might affect his impartiality.  Justice Ginsburg is not helping anybody by sounding off.