Author: Gerard Magliocca

3

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.)

2

Racial Gerrymandering vs. Partisan Gerrymandering

Some comments to my prior post about partisan gerrymandering asked why racial gerrymanders are invalid if the right of individuals to vote is not affected. And that being the case, why not say the same about gerrymanders based on political affiliation? (I’ll note, parenthetically, that these are not the issues that concern Justice Kennedy. He is focused on the practical implications of what test could be used to assess partisan gerrymanders.)

Anyway, my answer is that intentional state classifications are a unique evil that are subject to strict scrutiny. Simply being classified by race is a harm except with limited exceptions. Can the same be said for intentional classifications based on political identity (Republicans vs. Democrats)?  I would say no. There are constitutional limits to those sorts of classifications, but it seems to me that some concrete harm in addition to the classification must be shown. And that cannot be done here.

0

The Legal Status of the President’s Twitter Account

I want to revisit something that I posted months ago. Sooner or later, a court is going to have to assess whether the President’s tweets constitute state action.

Suppose that Mika Brzezinski decided to sue the President for libel based on what he tweeted. Before reaching the merits, the President’s lawyers would probably contend that he has absolute immunity from tort claims for his official acts and that his tweets are official acts.

There is litigation pending, though, in which some people who have been blocked by the President from his Twitter account are claiming that he cannot do that just because he does not like what they are saying. This amounts, they argue, to viewpoint discrimination under the First Amendment since the President’s Twitter account is a state actor.

If the President’s argument against the hypothetical libel claim is correct, then the claim by the folks blocked on Twitter must also be correct at least with respect to the state actor issue. I don’t see how the tweets can be official for purposes of a libel suit but unofficial for purposes of creating some sort of public forum under First Amendment doctrine. It is, of course, possible to exclude people from a limited public form with sufficient justification, but that’s a separate question.

9

Masterpiece Cake

Another case that the Court will hear next Term involves a baker who refused to make a wedding cake for a same-sex wedding. The state anti-discrimination statute was held to prohibit that refusal and a Colorado court ordered an equitable remedy. On certiorari. the baker is arguing that his Free Speech and Free Exercise rights are violated by that decision.

I find this case difficult. On the one hand, personal beliefs cannot result in a general exemption from anti-discrimination statutes. On the other hand, there is something very troubling about making someone to engage in creative expression against their will.

One way of thinking about this problem involves focusing on what constitutes creative expression for a free speech claim.  (I think this claim is more compelling than the free exercise claim, though some of the Justices will disagree.) Say I own a banquet hall that I rent out for weddings, but I say no same-sex weddings. It’s hard to see how there is any expression involved in banquet hall rentals that would entitle me to say no.How about a restaurant hosting a wedding reception? Cooking is expressive to some extent, but if I just do a standard set of menu choices for weddings than it is hard to see how the kind of wedding reception that I’m hosting matters for expression.

The strongest expressive claim in this context is a wedding photographer. Wedding photography involves a lot of time, thought, and creativity. To say that someone must photograph a same-sex wedding when they do not want to strikes me as a serious First Amendment problem.

How about wedding cakes? My initial thought is that this claim is not that strong as framed by the record.  Making a cake can be expressive, especially if you get a custom design. But there are many, standard wedding cakes where the only “expression” is writing the names on the cake. If a baker was presented with a same-sex couple who said, “We want you to do a cake and have lots of specific requests to make,” maybe that could involve enough expression to present a problem. In this case, however, the baker just said he wouldn’t do cakes for a same-sex weddings. It wouldn’t matter what kind of cake was ordered or if the request was simply, “I want that cake in the window.” This seems more like the banquet hall or restaurant scenario than the photographer.

In sum, I think that there is a First Amendment limitation on the reach of anti-discrimination statutes for same-sex marriages, but I don’t think that the petitioner qualifies.

1

The President and the Bill of Rights

I see that the President made his first reference to the Bill of Rights on June 8th. (I hadn’t noticed this one until now.) You can find the remarks here, in which he told a faith-based group:  “Our religious liberty is enshrined in the very First Amendment in the Bill of Rights.” Since I’ve made a big deal about his absence of statements to this effect, I wanted to make sure I pointed this one out.

 

 

11

Partisan Gerrymandering

Now that we know Justice Kennedy is not retiring this year, I would like to comment on the case that the Court will hear next Term upcoming on whether partisan gerrymandering can violate the Constitution. It is very likely that four Justices will say that the issue is not justiciable and four will say that the the issue is justiciable and find a constitutional violation. Justice Kennedy’s position in the last go-round on this question was that the issue could be justiciable if some sensible test could be fashioned to assess the merits.

My tentative view is that the Court should hold that the issue is not justiciable. I say this for the following reason: I don’t understand the nature of the harm to an individual voter. Let me give you an example. For years I lived in a “safe” Democratic district in Indianapolis. There was zero chance that a Republican would win there. I voted that way anyway. Why? Partly because I cling to the old-fashioned view that you should “vote the rascals out” periodically and that straight line party voting is foolish.  (I aim to offend equally here on CoOp.)

Did I suffer a constitutional harm because my preferred candidates or party could not win? I don’t see how. I have a right to vote. I do not have a right to vote in a competitive general election. Many House members run unopposed in November–sometimes the only action is in the primary due to the nature of the state or district. Are those general elections constitutionally suspect?  No.

The problem with gerrymandering is that the legislature will not reflect the will of the voters. Say through deliberate planning a system is established in a state where 70% of the vote for a party gets that party only 30% of the seats (in a two-party system). You could then say that the Legislature is unrepresentative. What is the constitutional injury there?  I would say the state lacks a republican form of government under the Guarantee Clause of Article Four.  The Court, though, insists that the Guarantee Clause is not justiciable. Thus, I do not see why partisan gerrymandering is justiciable.

Of course, the Court could use this case as a way of reviving the Guarantee Clause. I highly doubt this will happen though. In a sense, the die was cast when Baker v. Carr grounded what became the one-person, one vote standard in the Equal Protection Clause rather than in the Guarantee Clause.

 

0

Bushrod Washington and Slavery

My research on what will be my next book continues.  An important part of the story will involve slavery. There is a delicious irony in the fact that Justice Washington, who owned slaves all of his life and inherited America’s most famous plantation, wrote the opinion (Corfield v. Coryell) that was later seen as a defining text for Section One of the Fourteenth Amendment. Complicating that narrative was Washington’s leadership of the American Colonization Society, which advocated the freedom and deportation of slaves to Africa, at the same time that he was selling many of his own to pay the considerable debts of Mount Vernon.

There is, though, an even more extraordinary tale to tell. Let’s start with George Washington’s will, which stated that his slaves would be freed upon Martha Washington’s death.  This created a rather knotty problem; Martha was soon petrified that these slaves would kill her to hasten their freedom.  At one point there was a suspicious fire at Mount Vernon, and Bushrod was summoned by his aunt and asked for his advice.  He told her to free George Washington’s slaves immediately, and she did.

Washington may have feared that history would repeat itself. In March 1821, he called all of his slaves together at Mount Vernon and told them that they would never be freed by him. (I learned this from a terrific book on Mount Vernon’s slaves by Scott Casper called Sarah Johnson’s Mount Vernon.) Such a statement against liberty by a Supreme Court Justice at the home of the Father of the Nation is remarkable enough. What’s more, just two years later Washington was writing the famous passage in Corfield about “those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments.”

To paraphrase Tolkien, Bushrod Washington’s life is a story that grows in the telling.

0

Leopards and Their Spots

My former colleague, Bill Bradford, is back in the news.  In 2005, he resigned from his position on our faculty, as summarized here. Two years ago he resigned his position as a lecturer at West Point, as summarized here.

These scandals, of course, made him a perfect candidate for a job in the Trump Administration at the Department of Energy. As the Washington Post reported the other day, though, Professor Bradford’s comments on Twitter are now under scrutiny. Among his observations was that Mark Zuckerberg was a “self-hating Jew.” (You can read the rest of the tweets yourself.)

In the Post article, Professor Bradford is quoted as follows: “As a minority and member of the Jewish faith, I sincerely apologize for my disrespectful and offensive comments. These comments are inexcusable and I do not stand by them. Now, as a public servant, I hold myself to a higher standard, and I will work every day to better the lives of all Americans.”

I wait with breathless anticipation to see the higher standard of conduct.

2

Reconsidering Qualified Immunity

Justice Thomas wrote an important concurring opinion today in Ziglar v. Abbasi. He argues there that the Court should (in an appropriate case) reconsider qualified immunity law by asking whether the decisions in this area should be more closely tied to the common law of official immunity when Section 1983 was enacted in 1871.  This would mean less immunity (overall) than is given now.

I emphatically with the need for reconsideration, and probably with Justice Thomas’s analysis on the merits (though I’d want to think about that some more). At a minimum, this might stimulate further research into Reconstruction-era tort law.

0

Call for Papers from the University of Arizona School of Law

National Conference of Constitutional Law Scholars

The Rehnquist Center is pleased to announce the inaugural National Conference of Constitutional Law Scholars. The conference will be held at the Westward Look Resort in Tucson, Arizona, on March 16-17, 2018. Its goal is to create a vibrant and useful forum for constitutional scholars to gather and exchange ideas each year.

Adrian Vermeule will deliver a keynote address. Distinguished commentators for 2018 include:

  • Jamal Greene
  • Aziz Huq
  • Pamela Karlan
  • Frank Michelman
  • Cristina Rodriguez
  • Reva Siegel
  • Robin West

All constitutional law scholars are invited to attend. Those wishing to present a paper for discussion should submit a 1- to 2-page abstract by September 15, 2017. All constitutional law topics are welcome, and both emerging and established scholars are strongly encouraged to submit. Selected authors will be notified by October 15, 2017. Selected papers will be presented in small panel sessions, organized by subject, with commentary by a distinguished senior scholar.

Please send all submissions or related questions to Andrew Coan (acoan@email.arizona.edu). For logistical questions or to register for the conference, please contact Bernadette Wilkinson (bwilkins@email.arizona.edu). The Rehnquist Center will provide meals for all registered conference participants. Participants must cover travel and lodging costs. Hotel information will be provided as the date approaches.

Conference Organizers

Andrew Coan, Arizona

David Schwartz, Wisconsin

Brad Snyder, Georgetown

The Rehnquist Center

The William H. Rehnquist Center on the Constitutional Structures of Government was established in 2006 at the University of Arizona James E. Rogers College of Law. The non-partisan center honors the legacy of Chief Justice Rehnquist by encouraging public understanding of the structural constitutional themes that were integral to his jurisprudence: the separation of powers among the three branches of the federal government, the balance of powers between the federal and state governments, and among sovereigns more generally, and judicial independence.