Category: General Law


Winston Churchill and Federalist #10

One point of interest during my research on Winston Churchill is that he quoted Federalist #10 in his discussion of the Constitution in A History of the English Speaking Peoples. Moreover, he seems to have internalized some of the ideas from that essay. In a major speech attacking a proposal to reform the House of Lords in 1947, Churchill argued that government needed to be structured to prevent any single faction from gaining power. I am going through all eight volumes of Churchill’s speeches (a fascinating though lengthy journey) to see if I can find any further connections between his evolving thought and our Constitution. Quoting Churchill is as good a way as any to wrap up CoOp, though I do have a special final post in mind.


The End of CoOp

We have decided that Concurring Opinions will come to a close at the end of the month. There will be some final farewell posts, but starting on January 1 the site will be dormant while we figure out how best to save our old posts.

I want to thank my co-bloggers and our readers. I will still blog from time to time at Balkinization, and who knows what else the future may hold.


Churchill on Prohibition

As I mentioned in a prior post, Winston Churchill made many interesting observations about our Constitution. One came in a 1929 op-ed (written for a British newspaper) in which he sharply criticized the Eighteenth Amendment and the “rat-trap rigidity of the American Constitution.” (Churchill was known to imbibe, so his opposition on the merits was not surprising).

“No folly,” Churchill wrote, “is more costly than the folly of intolerant idealism. . . . When standards of conduct or morals which are beyond the normal public sentiment of a great community are professed and enforced, the results are invariably evasion, subterfuge, and hypocrisy. In the end a lower standard is reached in practice than would have followed from a commonsense procedure.” Prohibition, in his view, “is the most amazing exhibition alike of the arrogance and of the impotence of a majority that the history of representative institutions can show.”

Churchill then compared Prohibition with the Fifteenth Amendment.  “The Southern negroes have the equal political rights it was the boast of the Constitution to accord them; but for two generations it has been well understood that they are not to use them in any State or District where they would make any difference. As with the Fifteenth, so will it be with the Eighteenth Amendment.” More controversial was Churchill’s assertion that the problem in both cases rested on the disproportionate burden than these rules imposed. With respect to the Fifteenth Amendment, “[t]he North were no more inconvenienced by the voting of a few handfuls of negroes scattered among their large population, and being outvoted on all occasions, than is a teetotaler by Prohibition.” “A law which does not carry with it the assent of public opinion or command the convictions of the leading elements in a community may endure, but cannot succeed; and under modern conditions in a democratic country it must, in the process of failure, breed many curious and dangerous evils. Whether or not you agree with Churchill’s analysis of the Fifteenth Amendment, there is an important insight here about the degree to which unequal burdens in fact pose a significant problem for democratic legitimacy.

Lastly, Churchill emphasized that Prohibition was partly a product of “hysteria in wartime on the home front,” by which he meant anti-German feeling.  (Canada also enacted Prohibition during World War I via legislation, but that was repealed afterwards after the “same unbalanced wartime emotion” passed.) I’ll revisit that point in a subsequent post.



Is a National Lottery Constitutional?

Here’s another interesting nugget from the old OLC memos. Can Congress create a national lottery?The OLC (in the 1980s) took the position that no enumerated power could sustain a lottery.

I’m not sure why a lottery is not a tax. Granted, it’s voluntary, but lotteries do raise plenty of revenue. You could also argue that a lottery facilities commerce (for all of the retailers who sell tickets). There is no prospect, though, for congressional legislation on this point.


Grand Jury Incorporation

I would be interested to hear from attorneys or scholars in criminal law about the following: Is there any policy argument in favor of using a grand jury indictment instead of an information to charge defendants? The only one that I can think of is that using grand juries allows more citizens to participate in the criminal justice system. But are there any others?


Total Incorporation of What?

Suppose you take seriously the comments by Justices Gorsuch and Kavanaugh in Timbs that the entire Bill of Rights applies to the States. Does that not mean that the Tenth Amendment is not part of the Bill of Rights?

To State the obvious, you cannot incorporate a states’-rights against states in any sensible way. One solution is to say that the entire Bill of Rights does not apply to the states, which is the Court’s current position. The other would be to read the 10th out and go with older cases that defined the Bill of Rights as the first 8 or first 9 amendments. It’ll be interesting to see if Timbs addresses this, though it need not.


Winston Churchill and Legislative Chambers

I’ve been doing some research on Winston Churchill. He had many penetrating insights on constitutional law and practice. One of them was that the British House of Commons (and many modeled on that chamber) are rectangles that presume a Government side and an Opposition side. In the United States and many other countries, the legislative chambers are semicircular. Why?

I don’t know the answer, but Churchill observed that semicircular chambers tend to break down partisan barriers. You don’t have to “cross the floor” to talk to other members. You can just mill around. That was probably not the intent, but who knows. Churchill, of course, took the view that parties in the British sense were essential and thus, when the House of Commons was destroyed in 1940, he said it should be rebuilt as it was. Maybe there is an interesting story about why the Capitol was designed in the way it was.


Gamble and Guido

Tomorrow the Supreme Court will bear argument in Gamble v. United States, in which the Justices are being asked to overrule their 1958 decision in Bartkus v. Illinois. I’ll have more to say about the case after the argument, but I did want to note one thing now. The lead dissent in Bartkus was authored by Justice Hugo Black. The clerk who helped him that opinion was Guido Calabresi. Sixty years later, he sits on the Second Circuit. We will see if Justice Black’s dissent becomes law.


Can Congress Pardon the President?

Here’s another interesting tidbit from the old OLC opinions. If you think that that the President cannot pardon himself, then can Congress pardon the President. The claim here is that a congressional pardon or amnesty would not interfere with the presidential pardon power because the President cannot self-pardon. In effect, a presidential pardon is the only one that Congress may grant.

I’m not sure this right. After all, a president can pardon his predecessor, as a Ford did with Nixon. If Ford had decided that pardoning Nixon was not in the national interest, could Congress overrule him? I would think not. Perhaps Congress could pardon the sitting President, though that would be somewhat strange.


Small Claims Court

I think that my earlier post about incorporating the Seventh Amendment was wrong. I’m not sure that any state forces people to go into small claims court and therefore receive no jury trial in a civil case. Looks like small claims court is always just an option for people who want to avoid the expense of ordinary civil courts. But I would need more research to be certain.

Actually, it’s not clear whether incorporating the Seventh Amendment would do anything. If that is correct, then an incorporation case will never arise.