Author: Gerard Magliocca

Here’s an interesting question that I’ve come across in a Bushrod Washington case. Suppose someone commits perjury as part of a judicial proceeding under a statute. The statute is then repealed. A prosecution for perjury is brought. The defendant argues that he cannot be convicted for perjury given the statutory repeal.

At first blush, I would have thought this was a bad argument. The Court, though, instructed the jury that they should acquit because of the repeal. Now this was a political case (for reasons I’ll skip over for now), and that may explain the instruction. I’m curious to hear whether criminal lawyers would think this good law now.

In my ongoing research on Bushrod Washington and Corfield, I have come across another Easter Egg. In a letter from Justice Washington to Justice Story dated June 8, 1825, Washington wrote:

“I send you a report of the case of Corfield v. Coryell as you perused the opinion at large during the last session of the Supreme Court.”

What I need to figure out is whether this means Washington showed Story a draft opinion of Corfield. I think that the answer is yes, but I want to check the schedule of the Supreme Court session in question along with the circuit court. If this line does refer to a draft opinion, that raises several wonderful questions. To what extent did the Justices share drafts of circuit opinions with each other? Does this mean that Washington wrote Corfield during a Supreme Court Term? Did Justice Story or another other Justice comment on the opinion?

When calm returns after the election, I’m going to some posts about a wonderful acquisition of mine. A few months ago I found a complete edition of Messages and Papers of the Presidents in an antique shop. This was an official compilation (ordered by Congress) of all of the official documents issued by Presidents from George Washington forward. (The edition I bought stops with Warren Harding). The papers themselves are, of course, interesting, but equally interesting are the essays that were written by leading scholars at the time about the presidents. They are time capsules worth discussing.

One thing I’ve learned so far (I’m only up to James Madison) is that under Washington and Adams the House of Representatives and the Senate each issued a formal reply to the President’s State of the Union Address (then called the Annual Message). This practice ended when Jefferson took office, but the replies are rather telling in their own right.  More on that later.

There is a lot of loose talk these days about whether the Supreme Court is in the midst of a legitimacy crisis. (The Garland nomination, the Kavanaugh confirmation.) Back in the day, there were real objections to the Court’s legitimacy that were expressed by boycotting Supreme Court arguments. Madison famously did not defend the Administration in Marbury v. Madison. Georgia did not show up for Worcester v. Georgia. And so on. I’m not sure what the last case was where one of the parties refused to file a brief or argue their position in the Court (it’s an interesting research question).

I highly doubt, though, that any litigant would respond to a certiorari grant by saying: “We cannot get a fair hearing in the Supreme Court and thus will not appear.” Thus, this suggests that legitimacy concerns are hyperbole.

In my Bushrod Washington research, I’ve come across a vulgar letter from a federal judge who served two hundred years ago. Sounds like a blog post.

Richard Peters was a distinguished Federal District Judge who often sat with Justice Washington on circuit. Peters wrote wonderfully charming letters, and the one that I’m going to quote described a case that the Judge was recounting to the Justice. Peters called this the case of “Splitting Hairs.”

The Complainant (so legally and corporeally) a mariner–declining now to proceed in rem–cited the owners of the Jefferson Indiaman, to show cause why process should not issue, for 5 months wages.

Defense: The Mariner was disabled from duty, during the whole period for which wages are claimed –by the venereal Disease. Proof–very minute and in detail–much inflated. No dispute about what was contracted . . .

Lawyer for Complainant. It is impossible for me to rebut this charge, not having had experience in such cases; and it may be doubtful whether your Honor has had competent knowledge to decide the degree of disability . . . But we cannot enter into the subject alleged to have produced the disability, by proof of capacity, or not . . .

The Court: I must split the difference and allow one half. It is a case which repels much nicety of examination and one in which I cannot split hairs.

Lawyer for Complainant: I am fine, Sir, you know that I never make a practice of splitting hairs.

The Court: I am glad you are warned by your client’s misfortune. The whole of this controversy–thus protracted–has been occasioned by his fondness for the splitting of hairs.

And so on.

In about two weeks, Americans will go to the polls and decide which party will control the House of Representatives. Or will they? It seems to me that there is a real prospect of a “hung” House, by which I mean that neither party will emerge with a stable majority.

Consider what would happen if a party won the House, by say, two seats. The first problem is that it would only take a few defections from that majority to block the election of a Speaker. Without that election, no party can take control of the committees and of the floor. This has happened before (though not in recent decades) and basically led to chaos until a Speaker was chosen. Then there is a second problem. Even if the majority can elect the Speaker, every contested vote in the House would be a dicey prospect. A couple of illnesses or absences would block the majority from acting. That is not a fun prospect for the party whips. Third, a couple of vacancies (say some members die or resign due to a scandal) could cause the House to flip through the equivalent of a by-election where a zillion dollars would be poured into the race.

In a parliamentary system, a hung parliament where a coalition is not possible typically leads to a snap election, precisely so that these sorts of problems can be corrected. We, of course, cannot have a snap general election under the Constitution. We would instead be stuck with an unorganized House of Representatives for two years. Who needs that headache.

In Timbs v. Indiana, the Supreme Court will consider whether the Excessive Fines Clause of the Eighth Amendment should be incorporated against the States. This issue comes to the Court in the context of a challenge to state criminal forfeitures of property that are allegedly very disproportionate to the underlying offense. The State of Indiana, knowing that there are probably at least five votes on the Court to incorporate the Excessive Fines Clause, have responded with a clever argument. In rem forfeitures, they say, are not fines at all. Thus, the Court need not reach the incorporation issue at all.

I’m not sure this argument will succeed, in that the Justices may simply declare the Excessive Fines Clause incorporated and ask the Indiana Supreme Court to determine whether in rem forfeitures are fines. But suppose this does not happen. What to make of the State’s argument? They have amassed an impressive body of evidence that in rem forfeitures were not considered fines either in 1791 (the year the Eighth Amendment was ratified) or in 1868 (when the Fourteenth was ratified).

An originalist might well be persuaded that this means that in rem forfeitures are not subject to the Eighth Amendment. Perhaps they would be subject to Due Process Clause scrutiny (much as punitive damage awards are) under the Fourteenth Amendment, but that could be a different level of scrutiny. Another way of thinking about this, though, is that we should be looking more broadly at what fines meant in 1791 or 1868. Perhaps criminal in rem forfeitures were relatively rare in these periods or were only used in felony cases where there was no issue about excess.

Still another tack would be that the whole notion that there is a distinction between in rem and in personam actions is a legal fiction that has outlived its usefulness. Admiralty law, which I teach, still relies heavily on the fiction that actions are being brought against or by ship rather than its owners. In criminal law, though, the idea that a forfeiture of your car has nothing to do with the car’s owner is  absurd and, frankly, pretty hostile to property rights. Accordingly, to rely on this sort of legal fiction in defining a constitutional provision would be contrary to the purpose of that provision. What is the correct answer?

One of the emerging themes in my research on Bushrod Washington is that the Marshall Court should be understood as a team rather than as the extension of one genius. Proving that thesis is difficult, because we know relatively little about how the Court reached its decisions in that era. In some instances, though, written evidence exists that makes the point. Here is an example that is not new, but gets less attention than it should.

When Congress repealed the Judiciary Act of 1801, serious constitutional questions were raised about the manner in which that repeal occurred. Specifically, the Article III judges confirmed in the waning days of the Adams Administration were now no longer judges and no longer got paid. This struck many as unlawful given that Article III judges were supposed to have life tenure.

John Marshall responded by floating the idea to his colleagues that they should refuse to resume circuit riding (as mandated by the repeal of the Act) and, in essence, go on strike in protest. To do otherwise would be to concede that Congress had acted lawfully. A strike by the Justices would have been a provocative and (in the political climate of the day) probably a foolhardy gesture that might have led to direct attacks on the Supreme Court itself.

Some of the Justices supported a strike (most notably Samuel Chase) but the first to say no was (you guessed it) Bushrod Washington. He explained in a letter to Marshall (that the Chief Justice talked about in a letter on his own) that he felt the constitutionality of circuit riding was settled by its use prior to 1801 and planned to resume circuit duty. Though Marshall continued to press the idea, he ultimately dropped the plan after Justice Paterson indicated that he sided with Washington.

What does this episode tell us? First, John Marshall was not infallible. Second, the Court did not follow Marshall as if he were the Pied Piper. Now one could argue that in this instance Marshall could not exercise his personal charm to persuade his colleagues, which may have made a difference.

Before I return to substantive blogging, I just have a quick thought. I think it’s rather charming that Justice Ginsburg is happy to allow merchandise bearing her likeness or name to be sold without any restrictions. This harkens back to another age when public figures did not vigorously enforce their right of publicity (to the extent that they even had one). For those who take a strong view of the need for a right of publicity on utilitarian grounds, her decision not to enforce hers is a counterpoint. (It’ll be interesting to see, someday, whether her heirs will be so charitable).

Can be found here.