Author: Gerard Magliocca


The Seventh Amendment and Louisiana

As I’m still going through the proofs of my book and trying to complete my reapportionment paper, let’s still with offbeat posts for the time being.

The Seventh Amendment is among the few that the Supreme Court has not extended to the states. Suppose, though, that at some point the Seventh Amendment is incorporated.  This provision refers twice to the common law (the only part of the Constitution does):

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Does this mean that the Seventh Amendment could not be extended to Louisiana? Louisiana, after all, has a civil law system.  (No state in 1791 used civil rather the common law.) Would Louisiana have to switch to common law?  Or would we undertake a more practical interpretation of common law to mean “certain types of actions” or “certain standards of appellate review of facts?”


The Vermont Ratification Convention

Here’s something that I didn’t know until yesterday: Vermont held a convention to ratify the Constitution. Vermont was an independent country (in other words, it was not part of the Union under the Articles of Confederation). In 1791, delegates were elected for a convention and they voted by a large margin to ratify. (Shortly afterward, Vermont was admitted as a state in time to also ratify what became the Bill of Rights.)  I’m going to read the records, though at first glance it seems like the focus was mostly on whether Vermont should stay independent rather than on what the Constitution said.


Who Would Be the Senate Majority Leader?

I’m working on the galley proofs of my Bill of Rights book–the last stage before publication. This puts me in the mood to daydream about far-fetched legal scenarios.

Suppose the Senate is divided equally between the parties. Under that scenario, the party of the Vice-President is the majority because the VP breaks ties. But what if the VP dies and the office is vacant? Does the Majority Leader remain the Majority Leader? Or is there no Majority Leader until a new VP is confirmed?

One way of thinking about that is that the Majority Leader must be affirmatively deposed by some Senate resolution or ruling of the Chair. In other words, the status quo is preserved. But what if there was a Senator from the “majority” who was ill (as Senator McCain is now). Then the other party could muster a 50-49 vote ousting the “Majority Leader” and the former majority could not muster a similar vote until the VP was confirmed (which the same Senate could delay).

Of course, the Senate does not have to have a majority leader to function. Perhaps the best rule in such an interregnum is that the office of Senate Majority Leader is also vacant.

An even more complex question would be presented if the VP was merely incapacitated (say, in a coma) rather than dead. Can a majority rest on a comatose VP?


Lampkin v. Connor

I am working away on my draft paper arguing that the congressional reapportionment process is unconstitutional under Section Two of the Fourteenth Amendment. In the course of my research, I’ve uncovered a fascinating unknown (or at least unheralded) story about the Civil Rights Movement.

In February 1963, Daisy Lampkin wrote a letter to the Secretary of Commerce. Lampkin was an activist for woman’s suffrage who became the national field secretary of the NAACP in 1935. After leaving that role in 1947, she became the first woman to serve on the organization’s Board of Directors. Lampkin’s letter asked the Commerce Secretary, who was responsible for the reapportionment calculations under the relevant statute, to enforce Section Two of the Fourteenth Amendment and lower the number of representatives from the South while increasing them elsewhere. The Commerce Secretary replied in a letter that he lacked the statutory authority to do what Lampkin wanted.

Shortly thereafter, the NAACP Legal Defense Fund (with Lampkin as the lead plaintiff) filed suit in the District of Columbia against the Commerce Secretary and the Director of the Census. The suit sought a declaratory judgment against these officials stating that the Reapportionment Act imposed a duty on them to enforce Section Two as part of the 1970 census. If the statute could not read as imposing such a duty, then the Act should be declared unconstitutional. Jack Greenberg (who succeeded Thurgood Marshall as the Head of the LDF and was part of the Brown litigation) was on the brief and (at least according to a newspaper article that I found) was assisted by Constance Baker Motley.

In early 1965, the Federal District Court dismissed the suit for want of standing.  Part of that conclusion rested on the fact that the plaintiffs were individual voters who might have lacked the concrete interest necessary to bring the claim. The court’s opinion, though, was also full of quotes from Justice Frankfurter about the need for courts to say out of political disputes.Shortly after this decision, the Voting Rights Act was signed by President Johnson.

A year later, the D.C. Circuit affirmed the dismissal, though on prudential standing grounds. Basically, the panel said that the wise approach was to see how the Voting Rights Act was implemented prior to the 1970 census before taking on the statutory and constitutional issues raised by the plaintiffs.

The suit was never refiled. One can understand why–the Voting Rights Act worked well. The problem, as my paper will explain, is the legal issue identified by the NAACP (that the reapportionment statute is unconstitutional under Section Two of the Fourteenth Amendment) was not fixed by the VRA and thus still stands. In a case with proper plaintiffs (states rather than individuals) this can be addressed.

Anyway, one of those curious “What If?” scenarios.


Clinton v. Jones and President Trump

I’ve posted before about the litigation pending against President Trump from his run as the host of The Apprentice. The President’s attorneys have moved to have the case thrown out, and in part they are arguing that Clinton v. Jones should be read as applying only to civil lawsuits filed in federal court. The pending lawsuit is in state court, which (under the President’s theory) allows him to obtain immunity.

I don’t think that this argument is persuasive. Clinton v. Jones was a misguided decision, but it’s hard to see why a President should get civil immunity for private acts only in one kind of forum. To a certain extent all that does is deny a remedy to plaintiffs who live in the same state as the President (therefore making diversity of citizenship impossible) while allowing plaintiffs from other states with the same claim to have an action.  How does that make sense?

Who knows, though, what the Supreme Court would do if ever called upon to reconsider Jones.


Library Fines and Regulation

This is a growing movement for public libraries to slash overdue book fines. (My local library just reduced its fines by half.) The rationale for this change is that fines impose a disproportionate burden on poor patrons and tend to discourage them from borrowing. A more effective (and distributively neutral) approach is to impose short suspensions of borrowing privileges on people who keep on returning books late.

I wonder if there is an insight here for other areas where fines or damages are used to regulate behavior.  Bail is a good example, as there is increasing interest in bail reform motivated by the fact that bail operates in a manner that discriminates against the poor (i.e. bail is being set too high for many criminal defendants).


Secret Service Harassment

The Secret Service is charged with the vital task of protecting the President, his family, ex-presidents, ex-First Ladies, and major presidential candidates.  They must, of course, also investigate credible threats against those that they are asked to protect. But . . .

There are reports in the media that the Secret Service questioned Kathy Griffin following her tasteless photo shoot holding a faux severed head of the President. If this is true, then I submit that this was harassment pure and simple designed to chill speech critical of the President.

Here’s why I say this. Even the densest blockhead knows that Kathy Griffin was not planning to kill the President and was not part of any such plot. She was being crude and offensive, but she has a First Amendment right to do that. The Secret Service (if they really questioned her about that stunt) was acting in bad faith purely because of her offensive speech.

I would be curious to know (if the reports are true) why the Secret Service decided to do this. I would further note that one of the articles of impeachment against Richard Nixon (Article II) was based on his misuse of the Secret Service “in violation of or disregard of the constitutional rights of citizens.”


More on Legacy Preferences

My most recent post on legacy preferences at state universities referred to an article by Professor Carlton Larson that argued that these admission preferences are unlawful. I asked in my post why we see no litigation challenging these preferences.  Below is Professor Larson’s response, which I am posting on his behalf:


Thanks to Gerard for the reference to my article on legacy preferences.  He raises a great question – why, nearly ten years after publication, haven’t litigants and courts rushed to embrace my theory?  (A question that most law professors have about nearly all of their law review articles.)

In addition to my Titles of Nobility argument, attorney Steve Shadowen has argued that the original understanding of the Fourteenth Amendment is inconsistent with legacy preferences by state universities.

When our papers came out around the same time, both Steve and I were interested in finding litigants willing to push our theories.  Although we have had a few queries, nothing has panned out.

I think there are several reasons for this.  First, only a handful of public universities are sufficiently selective that admissions preferences are a genuine issue.  Moreover, of those, only a few employ legacy preferences.  So the universe of potential defendants is small, at least when compared to the affirmative action context.

Second, even challengers to affirmative action programs have trouble finding good litigants.  An ideal plaintiff would be someone who would have gotten in, but for the legacy preference.  Granted, the Supreme Court in affirmative action cases has been exceptionally generous in finding standing for challengers, but a challenger who can show real concrete harm is ideal.  That applicant, however, is likely to have gotten in somewhere else, where he or she is probably perfectly content.  So these cases are unlikely to be generated by individual litigants seeking out a lawyer.

To really push these cases, then, one needs significant institutional players who are willing to hunt up litigants in the same manner that anti-affirmative action groups have done.  So far, there has been no player or political movement willing to do so.



Legacy Preferences at State Universities

Here’s a question that I want to pose. There’s a pretty good argument that can be made against the constitutionality of legacy (i.e., children of alumni) admission preferences at state universities.  My friend Carlton Larson wrote a great article about this years ago.  Why, then, don’t we see any litigation challenging these preferences?

I guess the answer is that some people must feel that a successful challenge to these preferences would undermine the use of racial preferences in admissions.  I’m not sure that’s true–I think they can be distinguished. Moreover, ending legacy preferences might improve diversity, though one would need data on how legacy preferences work to know that. Are there any other explanations?


The Titles of Nobility Amendment

I was surprised to learn recently that hardly anything certain is known about the constitutional amendment proposed by Congress in 1810 that could, in theory, still be ratified by the states. The proposal states:

If any citizen of the United States shall accept, claim, receive or retain, any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them.

I was curious about this proposed amendment because of the litigation filed against the President claiming that he is violating the Emoluments Clause of the Constitution. Since this text also refers to emoluments, I thought that the debate on this would be instructive. But there is hardly any recorded  debate on this (either in the Annals of Congress or in newspapers).

Furthermore, I was taken aback by the conspiracy theory that is out there that this amendment really was ratified and that this fact was covered-up because the proposal would have somehow made lawyers ineligible to serve in office or be citizens.  (Don’t ask me to explain how that follows from the text.)  You can search for yourself, and find people who think that this was the “real” 13th amendment.  (Wacky litigants have even argued this in court.)