Author: Gerard Magliocca


The Death of Popular Constitutionalism

“Popular constitutionalism” exerts significant influence in legal scholarship, including my own. There are two aspects to this approach: one descriptive and one normative. The descriptive part looks at how social movements and institutions outside of the courts interpret the Constitution and bring about change. The normative part celebrates these activities. Isn’t it wonderful when the people or elected officials take these important matters into their own hands? Courts, after all, are unelected havens for elites. My work often points out that popular constitutionalism does not always work out so well (as in Jacksonian Democracy of the rise of Jim Crow), but I think it’s fair to say that the rosy view has been the dominant one.

I think that is about to end.  Donald Trump will probably kill normative popular constitutionalism for a generation, much as jury nullification by racist Southerners killed that idea. (The Brexit referendum may also be cited as a kind of anti-precedent for popular constitutionalism, though it’s too early to say).  This social movement is going to crowd out memories of the beloved moments of popular constitutionalism, such as the Civil Rights Movement.

Indeed, I’ll go one step one further.  I think we will soon see a revival of interest in H.L. Mencken, who made his name by criticizing democracy as expressed by what he called the “booboisie.” Mencken had his own problems (like being an Anti-Semite), but his disdain for Middle America is probably going to get a more sympathetic hearing in certain quarters.


The House of Commons Is Now The House of Lords

In the nineteenth and early twentieth centuries, there was a healthy debate in Britain about when the unelected House of Lords could legitimately oppose the elected House of Commons.  The answer from 1832 to 1911 was that this could be done on important issues not involving the budget unless the House of Commons had a mandate from the voters, which was defined as a victory in a general election where the issue was squarely presented to the voters. In 1911, this consensus broke down when the Lords did not relent in the face of such a mandate, and a second general election and the threat of “Lords-packing” from the King was required to get the Upper House to back down and approve a statue stripping them of their absolute veto power over future legislation.

Brexit poses a related problem.  When should the elected House of Commons oppose the will of the electorate as expressed in  a referendum?  Formally, of course, the referendum was only advisory.  In practice, the current assumption is that Parliament will bow to the “Leave” vote.  Suppose, though, that in a year or two a majority of MPs conclude that Brexit would be a disaster and refuse.  In that scenario, the House of Commons would effectively be demanding that the result of the referendum be confirmed by a general election fought on that issue.

I think this would be a perfectly legitimate “sober second look” for such an important question.  If people really want to leave the EU, then the MPs who vote no on leaving would fare poorly.  Now do I think that a majority of MPs will actually resist the result of the referendum?  Right now, I’d say no.  Things might look different in 2017 though.


The Internal Dynamics of the Court

The result in Fisher was surprising, but the case illustrates an important point about how appellate courts work.  In Fisher I, the scuttlebutt is that a majority opinion was drafted (possibly by Justice Kennedy) to strike down the UT admissions plan and place new obstacles in the way of racial preferences in higher education. Justice Sotomayor then circulated a draft dissent that was, by all accounts, very fierce (some of which made its way into her subsequent dissent in the University of Michigan case).  This dissent caused the majority to back down and the compromise remand to the Fifth Circuit.  In the interim, something caused Justice Kennedy to change his mind (though we won’t know what for a long time.)

The point is that dissents are not just expressions of discontent or appeals to the future.  Sometimes they actually change the outcome of a case. This is why knowing who the influential Justices are is impossible until long after decisions are made, because we usually don’t know how those internal conversations go.


The New House Filibuster

I would bet that the sit-in tactic used yesterday by the House Democrats will become more common over time.  It’s pretty easy to find 50 House members who feel strongly about something and would be willing to tie up the chamber and rotate in protest.  The Speaker in these situations would be loathe to use the Sergeant-At-Arms to arrest these members or bar them from the chamber–that would look awful. And if social media can broadcast the protest even when the House is in recess, then there is no disincentive to do this other than the physical discomfort. (Sure, those broadcasts violated the House rules, but again, I doubt that the majority will do anything about that.)

Granted, this was not a true filibuster in that the Speaker was able (by ignoring the shouts of protest) to conduct business, but of course only very limited business can be conducted if the well of the House is occupied and speakers cannot be heard.


What Bill Clinton and Donald Trump Have in Common

One of the worst Supreme Court decisions in the past two decades was Clinton v. Jones, in which a unanimous Court held that the sexual harassment suit against President Clinton could proceed while he was in office.  This was a terrible decision in the short-run, as it led to the colossal waste of time that was the Clinton impeachment. Consider, though, it’s lousy longer-run ramifications.

If, God forbid, Donald Trump is elected, he will have to spend a lot of time in office dealing with civil litigation filed against him for his business activities.  The Trump University case is pending, but there are probably other cases that will be filed before the election and after with the goal of deposing Trump for one reason or another. How much time do we want our President spending on litigation over things that happened before he or she was President?


Clay v. United States

192px-Muhammad_Ali_NYWTSIn honor of today’s funeral for Muhammed Ali, I thought I’d post about the Supreme Court’s opinion reversing Ali’s conviction for refusing induction into the draft.  The Court held that the Draft Board’s refusal to grant Ali conscientious objector status as a believer in Islam was not explained and thus must be reversed because at least one of the reasons why that denial could have occurred was invalid. Justice Douglas wrote one of his quirky concurring opinions that discussed the concept of jihad at some length.  Basically, Justice Douglas’s point was that Islam was not pacifist, but that only a “just” war against non-believers was valid under the Qu’ran. Douglas then added a footnote that shows you how much things have changed since 1971:

“The last attempt to use jihad as a significant force was made in 1914 by the Ottoman Sultan; but it failed and the jihad has fallen into disuse.”


What is the Appropriate Standard for Judicial Recall?

I want to weigh in on an issue that involves my alma mater, Stanford University.  As I’m sure many of you know, a former student there, Brock Allen Turner, was convicted of three felony sexual assault counts against a woman who was visiting campus.  The judge in the case, Aaron Persky, then sentenced Turner to six months in jail and three years of probation.  Lots of people are outraged by this lenient sentence and have initiated a recall campaign against Judge Persky.

From what I know about the case, the sentence is preposterous. Here, though, is what troubles me.  Is it appropriate for a judge to be recalled or denied reelection for one decision, no matter how stupid it is?  I have not heard anything else about the judge’s tenure.  Now maybe folks in the Bay Area think that he’s a dimwit and this was the straw that broke the camel’s back.  Or maybe he is excellent in some cases but unfair to women in rape cases or just generally.  I have no idea.

Let’s say, though, that he’s a good judge who made a terrible decision in this case. Recalling someone on that basis strikes me as rather dangerous.  It means that any judge who makes a decision lots of people hate could justify a recall based on that single fact.  (This, of course, happened in Iowa some years ago to State Supreme Court Justices who ruled in favor of a constitutional right to same-sex marriage.)  Is that really the standard that we want?  (Granted, maybe this is just an argument against having elected judges, but within that system I certainly think unprofessional or abusive judges should be booted out.)

If any of the Stanford faculty who are involved with the recall effort would like to write a guest post here offering their thoughts, I invite them to do so.


Remedies for Violating the Religious Test Oath Ban

Article Six of the Constitution provides: “[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” A federal statute that imposed such a requirement would, of course, be struck down as unconstitutional.

Suppose, though, that President X were to announce in the Rose Garden:  “My Administration will not appoint any Muslims to any office or public Trust under the United States.”  Other than impeachment, would there be any remedy for the Muslims in that case, some of whom would certainly have standing?  The President would enjoy absolute immunity from a tort damage suit under Supreme Court precedent.  In theory a court could reinstate a federal official fired because of his or her faith, but someone who was simply not considered could not obtain any equitable relief (I would think), although again in theory a court could order some sort of remedial hiring.  What is the right answer here?


Can Art Change the Law?

This is one question posed in Richard Primus’ new piece in the Atlantic on the musical “Hamilton.” (In the interests of full disclosure, Richard is my friend and was my c0-clerk). Part of his point is that the popularity of “Hamilton” and its casting could make originalist arguments more accessible to minorities that may have previously dismissed those views as the product of white slaveholders.  Another possibility is that a jump in Hamilton’s profile could give his arguments in the Federalist or elsewhere greater weight as compared to, say, someone like Jefferson.

It is hard to think of a work of popular culture with a greater impact on popular views of our history than “Hamilton.”  The closest comparison is “Birth of a Nation,” the racist celebration of the Ku Klux Klan that is considered one of the classics of silent cinema (in terms of its technique). Some think that “Birth of a Nation,” which came out in 1916, played a significant role in the revival of the KKK in the 1920s, which led to some substantial legal and political changes.  I’ve never seen “Birth of a Nation,” but now I’m thinking that I should to probe this comparison further.