Author: Gerard Magliocca


The Framers’ Coup: The Making of the United States Constitution

One book that I read during my trip was Michael Klarman’s account of the Constitution’s creation, which I highly recommend. The book provides a wonderful overview of the political crisis under the Articles of Confederation, the process that led to the Constitutional Convention, the Convention, the ratification debate, and the drafting of what we now call the Bill of Rights.

Klarman’s thesis is that the Framers were far more nationalist and antidemocratic than the average American in 1787, but their proposal was ratified in spite of this disparity for a variety of reasons. I agree with the first part of this claim–the Framers were ultra nationalists for their era–but I think the second claim about their skepticism about democracy is overblown.

One flaw in Klarman’s account is that the Framers omitted a bill of rights from their proposal. In a sense, they were more willing to trust the democratic process (direct or indirect) than their critics, who insisted that additional constraints were necessary to protect basic liberties. Thus, I’m not sure who was more skeptical of democracy–the Federalists or the Antifederalists–although this insight does depend on how much you think the Antifederalists contemplated judicial review.

A second issue is that I’m not sure that the state constitutions of that era were more democratic than the Federal Constitution, which is part of Klarman’s case against the Framers.  Some of the state constitutions were more democratic, but others were not. Klarman himself points out that many of the states had grossly malapportioned legislative districts (which helped the Federalists in the ratification conventions), for example.

Third, I am dubious about the thought that what the Framers said in Philadelphia represented their “real” views about democracy and that anything they said later was “phony” and designed solely to win support for the Constitution. This was true to some extent, but that cynical take ignores the idea that some of the Framers could have changed their views over the course of the debate.

In any event, you should read the book.  You’ll learn a lot.


See You in 2017

I am leaving on an extended overseas trip tomorrow and won’t be back until January.  During that time, I plan to spend as little time online as possible.  Have a wonderful holiday season.  What could possibly happen while I’m away?


Foreign Emoluments Clause

Recently there has been a discussion about whether the Foreign Emoluments Clause applies to the President.  Here is the text:

“No Title of Nobility shall be granted by the United States; And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

The argument that this does not apply to the President centers on the fact that Article II subjects the President to impeachment and removal for (among other things) bribery. From this, you could draw two conclusions.  One is that the only remedy for a President taking foreign bribes is impeachment, which requires more votes than an Act or resolution of Congress. The other is that presidents can take gifts from foreign states so long as they are not bribes.

Here’s a problem though.  Article One says that an impeachment conviction may carry with it “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” This last phrase is the same as the one in the foreign emoluments clause. If the phrase does not include the President, then doesn’t it follow that the Senate cannot bar an impeached and convicted official from being elected President if he is eligible?  Maybe the Senate should not be able to forever bar someone from the White House, but I’m not sure why.

UPDATE:  Let’s turn this idea around.  If the Senate cannot disqualify somebody who is convicted from being President, then that strongly supports the reading that the F. Emoluments Clause does not apply to the President.


There Isn’t a Constitutional Deus Ex Machina

One unfortunate tendency since the election is for people to think that there is some magical clause in the Constitution that will prevent Donald Trump from becoming President or that will make his presidency a short one.  Faithless electors will vote for Hillary! Trump will be violating the Foreign Emoluments Clause! (which, let’s face it, hardly anybody thought about until 2016). Perhaps we will hear other candidates soon.

There may well be valid constitutional objections to specific things that the President-elect proposes, for many things there will be none.  (Rescinding some of President Obama’s executive orders, for example.) Public opinion will be the only check on these sorts of actions, either on the Administration itself or through the Congress.


Justice Thomas on the Electoral College

My first thought after the election was that my next big project should be on the Electoral College. My second thought (after some research) was that there was nothing new to say.  The flaws in that system are pretty obvious, but it’s also obvious that the odds of moving to something else are slim. (I can say some new things about the history of the EC, but nothing that moves the needle.)

Then there was a third thought:  Do we need to rethink some premises about constitutional law in given that the Electoral College has now produced a popular-vote loser as President in two of the last five elections?  Let’s think about something that Justice Thomas said in his dissent in U.S. Term Limits v. Thornton, which held that states could not impose term limits on members of Congress.

The Constitution simply does not recognize any mechanism for action by the undifferentiated people of the Nation. Thus, the amendment provision of Article V calls for amendments to be ratified not by a convention of the national people, but by conventions of the people in each State or by the state legislatures elected by those people. Likewise, the Constitution calls for Members of Congress to be chosen State by State, rather than in nationwide elections. Even the selection of the President-surely the most national of national figures-is accomplished by an electoral college made up of delegates chosen by the various States, and candidates can lose a Presidential election despite winning a majority of the votes cast in the Nation as a whole. See also Art. II, § 1, cl. 3 (providing that when no candidate secures a majority of electoral votes, the election of the President is thrown into the House of Representatives, where “the Votes shall be taken by States, the Representatives from each State having one Vote”); Arndt. 12 (same).

In short, the notion of popular sovereignty that undergirds the Constitution does not erase state boundaries, but rather tracks them. The people of each State obviously did trust their fate to the people of the several States when they consented to the Constitution; not only did they empower the governmental institutions of the United States, but they also agreed to be bound by constitutional amendments that they themselves refused to ratify. See Art. V (providing that proposed amendments shall take effect upon ratification by three-quarters of the States). At the same time, however, the people of each State retained their separate political identities. As Chief Justice Marshall put it, “[n]o political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass.” McCulloch v. Maryland, 4 Wheat. 316, 403 (1819).

This is the only example I can find of a Supreme Court opinion (albeit a dissent) that reasons from the Electoral College to some conclusion.  There are opinions that reject doing so, most notably the “one-person, one-vote” that said states could not replicate the structure of the Senate or the EC. I wonder, though, what happens if we take Justice Thomas’s idea further, but I need to give that more thought.


Electoral College Redux

I want to make one observation about the result on Tuesday.  You all know that Hillary Clinton is on track to win the national popular vote (by how much is still unclear).  You also know that this has occurred before.  What you may not know, though, is that this result is somewhat unusual.

Here’s why.  Since the Twelfth Amendment reformed the Electoral College in 1804, there have been three types of elections where the popular vote winner lost.  One was in 1824, when four candidates won electoral votes.  This is unlikely to happen again (indeed, no third-party candidate has won a state since 1968). The second involved some angry dispute over the result in one or more states that cost the national popular vote winner the election.  Hayes beat Tilden in 1876 on the basis of the disputed electoral votes in Florida (and two other Southern states), and Bush beat Gore in 2000 based on a dispute over Florida.

In this election, there is no dispute over the result in any state.  The popular vote winner in what was essentially a two-person race just lost.  The only time this happened before was 1888, when Grover Cleveland won the popular vote but lost the Electoral College.  I don’t know enough about that election to explain why that happened then (strangely, Cleveland lost his home state of New York, which was decisive), but perhaps there is something to learn there.


Petition to the President Asking For Recognition of John Bingham

I have created a petition on the White House website asking the President to give John Bingham a Presidential Medal of Freedom in honor of his contributions to the Fourteenth Amendment.  I urge you to sign and spread the word.  This would be an important statement (albeit symbolic) of our commitment to liberty and equality.