Category: General Law


Messages and Papers of the Presidents

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.


Boycotting Supreme Court Arguments

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.


Splitting Hairs

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.


A Hung House of Representatives

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.


An Interpretive Puzzle

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?



Folding to Save Judicial Independence

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.


Barnette at 75 — FIU Law Review Hosts Major Conference

Professor Howard Wasserman

Earlier this month the Florida International University Law Review hosted a major conference to celebrate the 75th anniversary of West Virginia State Board of Education v. Barnette (1943). Of the many conferences I have attended, this was unquestionably one of the very best.  

Organized mainly by Professor Howard Wassermanthe event made for a wonderful mix of  different ways (historical, jurisprudential and biographical) by which to consider and reconsider the landmark flag-salute case.

If you think you know everthing there is to know about Barnette, think again and check out the video of the conference (see time markers below).  Print issue forthcoming. 


Barnette at 75: The Past, Present, and Future of the “Fixed Star in Our Constitutional Constellation”

Friday, October 5, 2018


Welcome and Introduction, Prof. Howard Wasserman, Faculty Symposium Organizer


Welcome remarks, Dean Antony Page, Florida International University College of Law

FIU Law Review Members 2018-2019

First Panel: Barnette in Historical Context


Ronald K. L. Collins, Harold S. Shefelman Scholar, University of Washington School of Law

  • Thoughts on Hayden C. Covington and the Paucity of Litigation Scholarship


John Inazu, Sally D. Danforth Distinguished Professor of Law & Religion, Washington University School of Law

  • Barnette and the Four Freedoms


Genevieve Lakier, Professor of Law, University of Chicago School of Law

  • Barnette, Compelled Speech, and the Regulatory State


Brad Snyder, Professor of Law, Georgetown University Law Center

  • Frankfurter and the Flag Salute Cases

Second Panel: Reading Barnette


Aaron Saiger, Professor of Law, Fordham University School of Law

  • The Pedagogy of Barnette


Steven Smith, Warren Distinguished Professor of Law, University of San Diego School of Law

  • “Fixed Star” or “Twin Star”? The Ambiguity of Barnette


Paul Horwitz, Gordon Rosen Professor of Law, University of Alabama School of Law

  • Barnette: A Close Reading (for Vince Blasi)

Keynote Address


John Q. Barrett, Professor of Law, St. John’s University School of Law

  • Justice Jackson & Jehova’s Witnesses: Barnette in its Context, and in Jackson’s Life and Work

Third Panel


Erica Goldberg, Professor of Law, University of Dayton School of Law

  • “Good Orthodoxy” and the Legacy of Barnette


Abner S. Greene, Leonard F. Manning Professor of Law, Fordham University School of Law

  • Barnette andMasterpiece Cakeshop: Some Unanswered Questions


Leslie Kendrick, Vice Dean and David H. Ibbeken ’71 Research Professor of Law, University of Virginia School of Law

  • A Fixed Star in New Skies: The Evolution of Barnette

Notorious RBG and the Right of Publicity

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).


Justice Hugo Black’s KKK Speech

Given the commentary about Judge Kavanaugh’s testimony last week, I thought I might compare that performance to Justice Hugo L. Black’s 1937 radio address answering the charge that he had once been a member of the Ku Klux Klan. Justice Black, unlike Judge Kavanaugh, had already been confirmed by the Senate when the national press revealed that he had once been in the KKK. There were calls for Black to resign or be impeached, so he took to the radio to respond.

In his speech, Black stated: “During my recent absence on a short vacation abroad, a planned and concerted campaign was begun which fans the flames of prejudice and is calculated to create racial and religious hatred.” This was nonsense, but note that every Justice or would-be Justice who gets into trouble (such as Justice Black, Justice Thomas during his hearings, or Judge Kavanaugh) tends to reach for conspiratorial language.

Justice Black then summarized his Klan participation this way: “The insinuations of racial and religious intolerance made against me are based on the fact that I joined the Ku Klux Klan about fifteen years ago. I did join the Klan. I later resigned. I never rejoined. What appeared then, or appears now, on the records the organization, I do not know. I never have considered and I do not now consider the unsolicited card given to me shortly after my nomination to the Senate as a membership of any kind in the Ku Klux Klan. I never used it. I did not keep it. Before becoming a Senator I dropped the Klan. I have had nothing whatever to do with it.” This was not candid  given Justice Black’s Klan membership and the role that the group played in his election to the Senate in 1926. Granted, Justice Black was not testifying under oath about these issues, but it’s hard to say that he told the truth. In private, he thought this this nothing more than an effort by FDR’s enemies to destroy his reputation.

And yet Black became one of the greatest Justices in the history of the Court. Food for thought.