Author: Gerard Magliocca


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.


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 ( For logistical questions or to register for the conference, please contact Bernadette Wilkinson ( 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.


The Myth of Barry Goldwater

I want to address an inaccurate story that keeps getting thrown around in discussions about presidential impeachment or resignation. The story goes something like this. Richard Nixon was bound and determined to stay in office. Then he got a visit from some Republican Senators, led by Barry Goldwater. They informed Nixon that they would not support him any longer and, by doing so, convinced the President that he should resign. Why aren’t there more profiles in courage like Goldwater, people say now, who will stand up to their party leaders?

The answer is that Goldwater was no profile in courage. The famous visit came a few days before Nixon’s resignation. Watergate had gone on for more than two years at that point.  During most of that time, Goldwater supported the President. Only after the Supreme Court ordered Nixon to give his tapes to the special prosecutor and Nixon released the “smoking gun” tape did Goldwater get the “courage” to go to the White House and tell Nixon he should resign.

More important, this meeting did not, in fact, convince Nixon to resign. We know from many accounts that he was already considering that step before the Senators showed up. Part of the confusion, I think, stems from the fact that his resignation speech offered his “lack of political support in the Congress” as the reason for his resignation, which may have led people to think that he only learned this from the Goldwater visit.  But that’s ludicrous–everyone in Washington knew that his support collapsed after the release of the critical tape.

Basically, Goldwater was just the undertaker at the funeral.  The political body was already dead.


Official Immunity at Common Law

A healthy discussion is now underway about the legality and scope of qualified immunity. This is an area of law that should be substantially revamped, but given its deep roots in recent precedent that will be difficult.  Still, consider what the common law thought about this question, as crisply stated in a circuit opinion by Bushrod Washington from 1805 that addressed a maritime prize case:

The common law doctrine, as to torts, committed by officers acting under authority of law, is certainly very rigid. They act at their peril; and if they by mistake act wrong, there are but few cases in which they can be excused. But a reason may exist for this severity, in cases happening on land, which does not exist where similar cases occur at sea. In the former, the means of obtaining correct information are more within the power of the officer; and the officer may, in most cases, if he doubts as to the fact, insist upon being indemnified by the party. But at sea this cannot be done.



Stephanos Bibas

Today the President nominated Professor Stephanos Bibas to the Third Circuit.  This is another fantastic choice.  I first met him when we were practicing at the same law firm, and since then he has done exceptional work as a criminal law scholar.  I hope he is swiftly confirmed by the Senate.


Bushrod Washington on Judicial Modesty

I like the following quote from Justice Washington in McFadden v. The Exchange, which was a circuit opinion addressing whether the admiralty jurisdiction could hear a claim that an American vessel was illegally seized by France. It nicely combines the confidence that judges must display in their decisions with the healthy skepticism that keeps them open-minded:

I am fully sensible of the delicate nature of the question which is here decided, and I feel cheered by reflecting that the error of my judgment, if I have committed one, can and will be corrected by a superior tribunal; for surely a question of such national importance as this is, ought not, and I hope will not, rest upon the decision of this court. I can at the same time truly declare that if I could be so wicked as to decide this case different from the opinion which I must sincerely entertain respecting it, my humble genius and talents would not enable me to give one single reason which my conscience or judgment could approve.

Sure enough, Washington was reversed by the Supreme Court in an opinion that he joined.


Justice Washington and the Erie Doctrine

Everyone knows that Erie R.R. Co. v. Tompkins overruled Justice Story’s 1842 opinion in Swift v. Tyson and held that federal courts hearing cases in diversity jurisdiction should use the applicable substantive state law on matters involving contracts, torts, and other common-law subjects. People also usually learn that Holmes was a sharp critic of Swift v. Tyson during his tenure on the Court.

What you may not know, though, is that Bushrod Washington appears to be the first judge who articulated why the Erie doctrine made sense and why Swift did not. I learned this from reading something by Robert Jackson that cites Washington’s 1814 circuit opinion in Golden v. Prince. In Prince, Washington was called upon to interpret the same provision of the Judiciary Act of 1789 that was later read by Swift to empower federal courts to create their own general common law.  Here is what Washington said in rejecting that suggestion (it’s a long passage):

The powers bestowed by the constitution upon the government of the United States, were limited in their extent, and were not intended, nor can they be construed to interfere with other powers, before vested in the state governments; which were, of course, reserved to those governments impliedly, as well as by an express provision of the constitution. The state governments, therefore, retained the right to make such laws as they might think proper, within the ordinary functions of legislation, if not inconsistent with the powers vested exclusively in the government of the United States, and not forbidden by some article of the constitution of the United States, or of the state; and such laws were obligatory upon all the citizens of that state, as well as others who might claim rights or redress for injuries, under those laws, or in the courts of that state. The establishment of federal courts, and the jurisdiction granted to them in certain specified cases, could not, consistently with the spirit and provisions of the constitution, impair any of the obligations thus imposed by the laws of the state; by setting up in those courts a rule of decision, at variance with that which was binding upon the citizens, if the suit had been instituted in the state court. Thus, the laws of a state affecting contracts, regulating the disposition and transmission of property, real or personal, and a variety of others, which, in themselves, are free from all constitutional objections; are equally valid and obligatory within the state, since the adoption of the constitution of the United States, as they were before. They provide rules of civil conduct for every individual who is subject to their power, in all their relations to society; and consequently cannot, in cases where they apply, cease to be rules by which the conduct of those individuals is to be decided, when brought under judicial examination, whether the decision is to be made in a federal or state court.

The injustice, as well as the absurdity of the former deciding by one rule, and the latter by another, would be too monstrous to find a place in any system of government. Thus, for example, if the laws of a state, which regulated the distribution or transmission of property in the year 1789, should be totally varied by a subsequent law, the latter only would be the rule by which property could be distributed or transmitted from the time the law came into operation; and it can never be seriously contended, that a person inter- ested in this property, and from the adventitious circumstance of his residence in another state, entitled to make his claim, either in the federal or state court, should recover more by resorting to the former, than he would have recovered had he applied to the latter court.

With respect to rules of practice for transacting the business of the courts, a different principle prevails. These rules are the laws of the court and are, in relation to the federal courts, laws arising under the constitution of the United States, and consequently not subject to state regulations. It is in reference to this principle, that the 17th section of the same judicial act authorizes the courts of the United States to make all necessary rules for the orderly conducting business in the said courts, provided the same are not repugnant to the laws of the United States; and under this power, the different circuit courts, at their first sessions, adopted the state practice as it then existed, which continues to this day, we believe, in all the states, except so far as the courts have thought proper, from time to time, to alter and amend it Indeed, the counsel for the plaintiff, in this case, seemed to admit the distinction between general laws affecting rights, and those which relate to the practice of the courts; but still he contended, that the act of assembly in question, afforded no rule of decision for this court and could not be pleaded in bar of the action, because it was enacted since the year 1789. Now, it is most clear, that a law which discharges a contract is no more a law of practice, than one, under the sanction of which, the contract was made. If it would bar the action in a state court it would equally do so in a federal court; although the particular mode of setting up the bar, might depend upon the practice and rules imposed by the state laws upon the former courts, and those which the latter may have thought proper to adopt.

This is the Erie doctrine, stated succinctly more than a century before Justice Brandeis did so for the Supreme Court. Pretty remarkable.


Bushrod Washington and the Presumption of Constitutionality

One of Randy Barnett’s many contributions to constitutional law is his argument that the current presumption of constitutionality should replaced by a presumption of liberty. While there is no single source for the presumption of constitutionality, Justice Washington is often cited for this proposition. The quote comes from the conclusion of his opinion in Ogden v. Saunders (1827):

It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt. This has always been the language of this Court when that subject has called for its decision, and I know that it expresses the honest sentiments of each and every member of this bench.

While this line was quoted in three different dissenting or concurring opinions by Justice Brandeis, what catapulted Justice Washington’s admonition to fame was Franklin Roosevelt’s Fireside Chat defending his 1937 Court-packing proposal:

For nearly twenty years there was no conflict between the Congress and the Court. Then Congress passed a statute which, in 1803, the Court said violated an express provision of the Constitution. The Court claimed the power to declare it unconstitutional and did so declare it. But a little later the Court itself admitted that it was an extraordinary power to exercise and through Mr. Justice Washington laid down this limitation upon it: “It is but a decent respect due to the wisdom, the integrity and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt.”

But since the rise of the modern movement for social and economic progress through legislation, the Court has more and more often and more and more boldly asserted a power to veto laws passed by the Congress and State Legislatures in complete disregard of this original limitation.

I wonder if Brandeis and FDR chose this quote because Justice Washington seemed to invoke the authority of George Washington. Unlike Corfield v. Coryell, which was about a constitutional clause that became even more important as a reference following the ratification of the 14th Amendment, there is nothing particularly special about Ogden or about Washington’s view of judicial deference.



Presidential Declassification of Information

I just wanted to observe that the recent controversy over the President’s alleged disclosure of classified information to the Russian Foreign Minister was discussed in analogous way by an episode of “Yes, Prime Minister.” Prime Minister Hacker and Sir Humphrey have a conversation after Bernard Wooley tells the press (in a garbled way) that the PM is above the law with respect to the disclosure of information under the Official Secrets Act.

The PM: We must do something to improve my relations with the press, which deteriorated considerably when my private secretary told them I felt I was above the law when it came to official secrets. What’s the constitutional position, Humphrey?

Sir Humphrey: Well, in a sense, Bernard was right. The question, in a nutshell, is what is the difference between a breach of the Official Secrets Act and an unattributable, off-the-record briefing by a senior official? The former-a breach-is a criminal offence. A briefing is essential to keep the wheels turning. Is there a difference or is it a matter of convenience and interpretation? Is it a breach of the act if there is an unofficial, non-attributable briefing by an official who’s been unofficially authorised by the Prime Minister?

Sir Humphrey: Not if it’s been authorised by the PM, no. I should decide if it’s in the national interest for something to be disclosed, not officials. Last week’s leak must’ve come from an official.

Sir Humphrey: But what if the official was officially authorised or even unofficially authorised? What if the PM officially disapproves of a breach of the act, but unofficially approves? Then a leak would be unofficially official, but officially unofficial.