Author: Gerard Magliocca


Citations to the Preamble

In reading through Bushrod Washington’s opinions, one practice of note was his citation of the Preamble as authority. For example, in a case involving a state law, he said something along the lines of “This law cannot be valid because the Constitution was meant to create a more perfect union.”

Makes me wonder if there’s a paper (perhaps already written) on the original public meaning of the Preamble. Or the way in which the Preamble was cited.



Breaking Ties in Legislatures

I came across something interesting today. When the House of Commons has a tie vote, the Speaker breaks the tie. (In the British Parliament, the Speaker is a non-partisan parliamentarian rather than a party leader.) In doing so, the Speaker follows a convention to always vote against (1) motions that would curtail debate; (2) amendments to a bill; and (3) final passage of a bill. The theory behind this is that only a majority should be able to do any of these things, and a tie means there is no majority.

Contrast this with the practice in the United States Senate. The Vice-President just votes as he thinks best (though, in practical terms, he takes the position of the President). John Adams established this precedent in casting the first vote to break a tie. I wonder to what extent Adams thought about this.


One Further Thought on the OLC Memo

In Noel Canning, strong evidence was presented that recess appointments were understood originally to mean the recess between sessions of the Senate. From this point, it follows that Congress could (and probably had to) give the President the power to make interim appointments during a session when the Senate was on a break. Thus, there was no conflict between the two so long as the interim appointment was time limited or there was some clear norm that a formal nomination would quickly follow for Senate consideration.

Given the modern interpretation of the Recess Appointment Clause (in other words, that these picks can happen whenever the Senate says that it is in recess), and the fact that a President might want to avoid Senate confirmation for one of these positions, I think that there is a conflict or a problem. In practice, though, if Whitaker does nothing of consequence until a nominee is chosen, then I doubt a court will gainsay the OLC Memo’s conclusion.


The OLC Memo on the Acting Attorney General

The memo is very thorough, and I’m almost convinced that the Whitaker appointment is legal. Here is my remaining constitutional question.

I’m still not clear on what the point of a recess appointment is if the President can simply make an “acting” appointment. One thought is there is some profound difference between being the “acting” somebody and the real somebody. In formal terms, though, I do not see why that is the case. Now you could also say that the “acting” appointment is more time-limited than a recess appointment. But that’s not true when, as in this case, we are near the end of a Congress.

My position is that Whitaker is lawfully the Acting Attorney General today, but that his appointment can only run until the end of this Congress. To say that a statute can grant an “acting” appointment beyond the duration of a recess appointment strikes me as wrong. If any of the examples cited in the memo actually did that, though, then I would have to reconsider my position.


Andrew Johnson in Messages and Papers of the Presidents

In my edition of Messages and Papers, here’s part of the essay on Andrew Johnson, which gives the standard view of him in the 1920s.

“In integrity of purpose, in personal and moral courage, in intensity of patriotism he has no superior among our Presidents. That his impeachment marks one of the most dangerous epochs of American history there can now be no question among people whose opinion is at all worthy of respect. Even intelligent Republicans now take this view of the matter. Not long since in a lecture before a college in this city, Mr. Justice John M. Harlan, of the Supreme Court of the United States, stated that as his opinion. He is certainly a competent witness. . . .

If a true history of the United States is ever written, while Andrew Johnson will not stand in the front rank of American statesmen, he will unquestionably stand in the front rank of American patriots. He did more, and risked more, to preserve the Union that was done by all the men combined who voted for his conviction.”


Call For Papers

ALPS will hold its 10th Annual meeting at Syracuse University, in Syracuse New York, May 16-18. The dates include a pre-conference reception on the evening of May 16; full day meetings on May 17-18, each with continental breakfast, lunch, and light reception; and an optional field trip during the day on May 16. Field trip detail will be available prior to registration and tentatively include a visit to the Oneida Indian Nation of New York. The Oneida Indian Nation is one of the original members of the Haudenosaunee people (also known as the Six Nation of the Iroquois). 
Paper submissions on any subject related to property law and the practices that shape property norms and institutions are welcome. ALPS has a strong commitment to international and interdisciplinary diversity, and paper topics reflecting that commitment are encouraged. ALPS accepts both individual paper submissions and proposals for fully formed panels (usually 3 to 4 presenters, sometimes including films or multimedia outputs). Individually organized sessions of full panels may have as few as 3 presenters; all sessions with individually submitted papers will typically have at least 4 presenters. Submissions may be of full paper drafts and completed projects, or early works-in-progress. 
More details are available here  

Jury Unanimity in Criminal Cases

One interesting result yesterday was that Louisiana approved a state constitutional amendment providing that juries must be unanimous to convict a defendant of a crime. This means that only one state–Oregon–says that in some criminal cases there can be a conviction without a unanimous jury.

In a fractured decision 46 years ago, the Supreme Court held that the Sixth Amendment as incorporated against the states permitted non-unanimous jury verdicts in criminal cases. If a case arises from Oregon presenting this question, the Court should grant review and make clear that the Sixth Amendment requires unanimous jury verdicts in all criminal cases. There is, though, a chance that Oregon will reform its own law and render the issue moot.


The Puny James Madison

James Madison did not always have the stellar reputation that he now does. Indeed, until the twentieth century nobody few paid attention to Federalist #10, now seen as the most important of those essays. In my edition of Messages and Papers of the Presidents, Senator Albert Beveridge of Indiana (and biographer of John Marshall) wrote the introduction to the Madison section. Here is part of what he said:

His character was not masterful. He was a follower of mightier men. He was easily influenced by such lordly wills as Hamilton, easily seduced by such subtle minds as Jefferson. Thus his public service was a series of contradictions, compromises, doubts and fears. . . . Between those tremendous mountain peaks of power, Hamilton and Jefferson, standing over each other, Madison was the valley.


Barry Goldwater on Political Contributions by Unions and Corporations

One of the curiosities in my library is Barry Goldwater’s book The Conscience of a Conservative, which launched his presidential campaign and was an important political text in the 1960s. In a discussion of the evils created by labor union donations to politicians when not all union members agreed, Senator Goldwater said the following:

In order to achieve the widest possible distribution of political power, financial contributions to political campaigns should be made by individuals and individuals alone. I see no reason for labor unions–or corporations–to participate in politics. Both were created for economic purposes and their activities should be restricted accordingly.


Supreme Court Hate Mail–1820s Style

Bushrod Washington received an anonymous letter in 1822 criticizing his recent sale of slaves. The letter apparently came from a Cajun in Louisiana, and reads in part:

Je take la libertie of writing to vous—Je have heard of votre character in Louisiana, where vous rend votre Slaves . . . Vous suppose you are great because named Washington—you imagine you may commit crimes with impunitee. Wretched being le time is coming when vous have to answer for votre base crimes . . . Le Spanish Pirate is better than vous. You send votre fellow mortals to a land of miserie. Vile petit villain how can vous look a manly man in le face. Votre withered hellish countenance black with le deeds of hell . . . Your brains ought to be blown out, vous stinkin Cur . . . Adieu, Je remain votre implacable enemy.