Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.


Constitutional Covers: “The Heart of the Constitution” by Gerard Magliocca

April 14th, 2017

One of the oldest features on this blog profiles new books about constitutional law that feature graphical representations of the Constitution on the cover. Hence, constitutional covers. See my previous discussions of Constitutional Covers for LeeChemerinsky, Balkin, Greve, Epps, Seidman, and my initial (and thankfully) unused design of my own.

The latest entry in this series is “The Heart of the Constitution” by Gerard Magliocca.

The illustration represents the twelve amendments proposed by the First Congress as parts of the chambers and valves of the heart. This is a very craft and creative way to represent the theme of the book. I like it!


Desai & Magliocca on 3D Printing and Guns

October 11th, 2013

Check out Gerard and Deven’s cool new article on 3D Printing and Intellectual Property law. The article has a lengthy discussion on guns and 3d Printing, a topic I have addressed at some length.

First, they argue that concerns about 3D guns is a “red herring”:

In 3D printing, the best example of the tension between desired, unexpected outcomes and risks seems to be the problem of homemade guns. We believe the gun issue is a red herring regarding possible regulation of 3D printing, but it is a great way to explore concerns about the technology.

After discussing some of the difficulties of actually creating a plastic strong enough to withstand the impact of the bullet, the authors worry about how “rapid progress” can spur legislators to regulate.

This kind of rapid progress sends shivers up the spine of public officials who want to regulate firearms. It also opens the door to legislative mischief and mistakes. Incumbent patentees may lobby Congress to pass statutes that hobble the 3D printing industry. Such efforts could use the fear of guns gone wild as a rallying cry for limits on 3D printing that stretch beyond what may be required for those limited issues. The understandable desire to prevent individuals from making untraceable or illegal guns should not cause undue alarm.

Next, the authors address several ways that 3D guns could be regulated. One way would be to regulate the materials used to print the guns:

Once 3D printers are capable of making guns that work, there will still be several ways of controlling that production. One source of regulation involves the material used to make the gun. If only a particular blend of plastic or metal can be shaped into reliable guns, then the solution is to restrict purchases of that material. If guns can be made from a common material, then the answer would be to alert law enforcement authorities when someone buys an unusually large amount of that input, much as some states do with fertilizer because terrorists can make bombs out of that.47 Neither of these steps would stop guns from being made in the home, but either one would make it harder to make them (or make many of them).

Or, control access to bullets and gunpowder.

Guns also need bullets, and even if 3D printers can make them, making gunpowder for them is another matter.48 Accordingly, policy levers other than legal restrictions on the technology itself can handle the challenges posed by the fact that 3D printers make it easier to produce guns.

This would have HUGE policy implications as many, many people choose to reload their own ammunition with store-bought gunpowder. I don’t see this as being viable at all.

Of course, the other way that 3D guns could be regulated would be to clamp down on the distribution of the 3D blueprints for these dangerous items, in a similar fashion to clamping down on pirated goods (as the authors discuss later in the article).

Finally, there is the software, which could be written by the user, acquired from a friend, or downloaded from a site that hosts CAD files.97 Those sites could be vulnerable to litigation for hosting infringing software. …

Without a DMCA for patents and trade dress, though, considerable litigation will be required to clarify the rights and responsibilities of patentees and websites.109 We think that extending the notice-and takedown rules of the DMCA is the simplest solution, because these sites are already complying with those rules for files involving copyrights.

This is the subject of an article I’m working on about the 1st and 2nd Amendments and 3D Printing. This article will be presented at a symposium on the 2nd Amendment for the Tennessee Law Review.


Magliocca on Wilkinson’s Cosmic Theory of Judicial Restraint

February 15th, 2012

I’ve criticized Judge Wilkinson’s jurisprudence for some time. Gerard has a nice segment:

Wilkinson introduces and concludes his analysis by advocating judicial restraint as superior to any comprehensive system of constitutional interpretation. This raises a question–why isn’t judicial restraint also a cosmic theory? After all, that approach has its own pros and cons if it is treated as something more than a presumption. Judge Wilkinson is aware of this weakness, but his response is not persuasive. I was particularly struck by this passage, which responds to the point that some activist decisions of the past have stood the test of time:

“Decisions like Brown, Gideon, and Miranda represent success stories because they vindicated foundational principles essential to the functioning of our nation. But I doubt there are now Browns and Gideons waiting to be born.”

Unfortunately, this sounds a lot like the infamous quote from the United States Patent Commissioner in the late nineteenth century that everything that could possibly be invented had already been invented. A presumption in favor of judicial restraint is fine, but when that becomes dogma implausible conclusions must be drawn to keep the faith. Judicial restraint is no exception.

I may write a review of this book. We’ll see.

Update: I don’t know what J. Harvie would have done if he sat on the 4th Circuit in Segregationist Virginia. I wonder how he would answer that question.

Magliocca on Why the Incorporation of the Bill of Rights Failed, and Why Slaughterhouse Does Not Foreclose Incorporation

December 2nd, 2009

Take a look at Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century?

This Article examines the failure of the incorporation doctrine following the ratification of the Fourteenth Amendment and draws some lessons from that experience for the live issue of whether the Second Amendment should apply to the States.

The analysis reaches three main conclusions. First, the Slaughter-House opinion did not foreclose the application of the Bill of Rights to the States. A careful review of the cases and commentary interpreting Slaughter-House from 1873 until 1900 shows that almost nobody thought that the case spoke to the issue. Second, courts reviewing incorporation litigation in this era distinguished between procedural claims, where there was little support for the concept, and substantive claims, where there was support. Unfortunately for advocates of incorporation, virtually all of these initial cases were about procedural issues, which created negative momentum for the whole concept. Third, enthusiasm for applying substantive provisions (e.g., free speech, free exercise of religion, freedom from unreasonable searches and seizures, or cruel and unusual punishment) to the States disappeared in the mid-1890s because of fear created by a surge in protests from Populist activists and labor leaders. Just as civil liberties have traditionally retreat in wartime, the same dynamic retarded the expansion of the Bill of Rights in a period of domestic discord. Based on these conclusions, the analysis holds that the historical evidence supports the incorporation of the right to bear arms.

There is a lot of good stuff in here, and I will be working to incorporate it into Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment, (forthcoming Georgetown Journal of Law & Public Policy)

And from the article:

Far less atten- tion is given to the question of why courts almost uniformly re- jected the extension of the Bill of Rights to the states in the decades after the Fourteenth Amendment’s ratification.9 If the original understanding supporting incorporation was so clear, why did contemporary judges reject the idea so overwhelming- ly?10 The most common response is that the Supreme Court gave the Privileges or Immunities Clause of the Fourteenth Amendment a stingy and erroneous reading in the Slaughter- House Cases11 and set back incorporation for decades.12 Indeed, Slaughter-House is one of those rare decisions, like Dred Scott v. Sandford13 or Buck v. Bell,14 that constitutional lawyers of all ideological stripes love to hate.15

This Article rejects the conventional interpretation of Slaughter-House and offers another explanation for incorpora- tion’s demise that rests in equal measure on an unlucky sample of cases and on the unintended consequences of constitutional politics in the 1890s.16 A careful examination reveals nothing in Slaughter-House that is inconsistent with incorporation.17 In- deed, no federal opinion prior to 1900 construed the case as contrary to extending the Bill of Rights to the states. The anti- incorporation reading did not emerge until Maxwell v. Dow, which was decided three decades after Slaughter-House.18 By this time, though, incorporation had been undermined by two independent developments.

First, virtually all of the cases that squarely raised incor- poration between 1873 and 1900 involved procedural claims.19 In other words, the Court rarely dealt with litigants seeking protection for religious freedom, for free speech, or from unrea- sonable searches and seizures. Instead, the Justices got a steady diet of cases seeking to invoke a right to a civil jury trial or grand jury indictment, both of which are still not applied to the states.20 This pattern was significant because lawyers at this time drew a sharp distinction between substantive rights, which were fundamental and unalterable, and procedural forms, which were subject to improvement and should not be constitutionally fixed.21 Thus, the initial cases that raised in-corporation drew from a distorted sample—in the area where support for the idea was at its ebb—and created precedents that made it easier for the Court to reject the entire concept later.

Of particular interest, the article contends that Slaughterhouse does not foreclose the doctrine of incorporation. Rather, the later precedent of Maxwell v. Dow (1900) accomplished that task.

The other interpretation is that Slaughter-House’s discus- sion of national rights was illustrative and not exhaustive, which if correct would not undermine incorporation. Indeed, the Court’s statement that it was describing “some” of the privi- leges or immunities protected by the Fourteenth Amendment supports this open-ended construction.

But in no case did a federal court say that Slaughter-House meant that the Bill of Rights was not in- corporated by the Fourteenth Amendment. This raises an ob- vious question: where did that interpretation come from? The answer is that the Justices themselves arrived at this view in Maxwell, a 1900 case rejecting the claim that a state conviction rendered by a jury of eight—instead of the tradition- al twelve—was invalid because the Sixth Amendment right to a jury trial was a privilege or immunity under the Fourteenth Amendment.53 Petitioner contended that “all the provisions contained in the first ten amendments, so far as they secure and recognize the fundamental rights of the individual as against the exercise of Federal power, are . . . to be regarded as privileges or immunities of a citizen of the United States . . . .”54 In response, the Court quoted extensively from Slaughter- House and concluded in the opinion’s crucial section on national rights that “[a] right, such as is claimed here, was not men- tioned, and we may suppose it was regarded as pertaining to the State, and not covered by the amendment.”55 Thus, Max- well endorsed the “exhaustive” reading of Slaughter-House and fixed the Court’s hostility toward the Bill of Rights for the next century.56

The article continues to discuss the incorporation doctrine from the ratification of the Fourteenth Amendment until Maxwell in 1900.

The most notable fact about these cases is that they largely concerned the procedural parts of the Bill of Rights (such as the grand jury, civil jury, and petit jury) rather than the substantive ones (for example, free speech, right to bear arms, and freedom of reli- gion).57 This pattern is significant because courts were reluc-tant to bind the states with procedures that were considered relatively unimportant and subject to improvement.58 Thus, most litigants who brought incorporation claims did so on the weakest possible grounds and created precedents that proved harmful to the broader idea.

These incorporation precedents indicate that procedural rights were viewed less favorably than substantive privileges for two reasons. First, procedure was just a means to an end that could vary between jurisdictions without doing much harm.71 Second, these forms were not sacrosanct because, in what today might be called “living constitutionalism,” there was a strong belief that they could be improved with expe- rience.72 While these two arguments are treated more skepti- cally today, they still retain some force in the sense that there is no clamor for overruling Walker or Hurtado to incorporate the civil and grand jury requirements. In these cases, there re- ally is a sense that the Bill of Rights is protecting a form that is not essential (or even good) for achieving justice.73

While the article only tangentially discusses McDonald and incorporation, the article concludes in favor of incorporation:

What do these principles tell us about how the Supreme Court should view a Second Amendment incorporation claim? First, this is one of the few substantive portions of the Bill of Rights that have not overcome the hostility toward incorpora- tion generated by the backlash against the Populists and la- bor.174 This exception is hard to justify more than a century af-ter William Jennings Bryan’s defeat in the 1896 campaign. Second, a review of the Court’s Second Amendment decisions from the 1870s until the 1890s, which are the only ones that address incorporation, shows that there is no holding rejecting the idea.175 Consequently, this historical inquiry counsels in fa- vor of a conclusion that the Second Amendment should be ex- tended against the states to join its compatriots in textual free- dom.

The Texas Plan: Nine Constitutional Amendments

January 8th, 2016

Texas Governor Greg Abbott released a 90-page document detailing nine amendments that could be considered by state constitutional conventions. The document is titled “Restoring the Rule of Law with States Leading the Way.” Here is a summary of the 9 proposed amendments, dubbed The Texas Plan.

  1. Prohibit Congress from regulating activity that occurs wholly within one State.
  2. Require Congress to balance its budget.
  3. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law.
  4. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from preempting state law.
  5. Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.
  6. Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.
  7. Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.
  8. Give state officials the power to sue in federal court when federal officials overstep their bounds.
  9. Allow a two-thirds majority of the States to override a federal law or regulation.

Numbers 5 and 6, which concern the judiciary, and number 8 which concerns standing, are really interesting proposals.

Under Proposal #5, states would convene conventions to overturn Supreme Court decisions:

The Texas Plan supplies that accountability. It would allow States to convene assemblies for the purpose of overturning the Supreme Court’s misinterpretations of the Constitution. In particular, the States could convene an assembly on the vote of 26 States. The States could pick their delegates to those assemblies, and the assemblies could meet as often as the States deem necessary. At the assembly, a two-thirds super-majority of state delegates would be required to overturn a Supreme Court decision. But once the super-majority requirement is met, the assemblies could overturn the Court’s decisions in whole or in part. They could overturn the Court’s decisions retroactively or prospectively. They could vitiate the precedential effect of the Court’s decisions and remand cases to the Supreme Court for further proceedings. In short, the assemblies would restore the people—rather than five unelected jurists—to the role of the truly supreme arbiter of the Constitution.

Proposal #6 imposes a super-majority of 7 votes, rather than 5 votes, for the Supreme Court to invalidate a law:

The Texas Plan fixes that anomaly by imposing the same super-majority requirement for Supreme Court decisions (three-fourths) that Article V already imposes for constitutional amendments. Not only is a super-majority already required by Article V, a super-majority also is a familiar requirement for courts. Every criminal jurisdiction in the United States requires a super-majority (if not complete unanimity) of jurors for criminal convictions. The purpose of those requirements is to mitigate the risk that a bare majority would get the answer wrong. If that concern is valid in individual criminal cases, and everyone agrees it is, the same is certainly true for the highest legal question our system ever could ask—namely, whether a particular thing is or is not unconstitutional.

The proposal cites Nebraska and North Dakota, whose Supreme Courts also need super-majorities to invalidate laws:

And lest anyone worry that this portion of the Texas Plan is unworkable or radical, super-majority requirements for judicial invalidations of statutes already exist in two States. Nebraska has a seven-member Supreme Court, and in 1920, it amended its Constitution to say: “[a] majority of the members sitting shall have authority to pronounce a decision except in cases involving the constitutionality of an act of the Legislature. No legislative act shall be held unconstitutional except by the concurrence of five judges.”260 And since 1976, North Dakota’s Constitution has imposed an even stronger super-majority requirement: it requires four out of five justices to strike down legislation.261 The sky has fallen in neither State.

The proposal also notes that this could be accomplished by a statute, but the Court would likely invalidate it:

Members of the modern Court have suggested that such congressional efforts are unconstitutional where they interfere with the Court’s conception of its own “essential functions.”268 Given the Court’s jealousy of its power to “say what the law is,”269 and given how far the Court has gone to arrogate to itself additional powers over the decades, there is a substantial risk that the Court would invalidate a statute imposing a super- majority requirement on its power to declare a statute unconstitutional. Thus, the safer route is a constitutional amendment.

Proposal 8 gives states standing to sue federal officials in federal court when the federal government acts unlawfully.

The best (if not the only) way to restore the Tenth Amendment’s intended protections is to give State officials broad rights to enforce it in court. That is, States should receive “special solicitude” to sue the federal government.325 And the Texas Plan would prevent courts from ducking claims by state officials against the unlawful actions of the federal government. Without consistent and uniform judicial redress, the States are in an untenable position and the Tenth Amendment becomes virtually unenforceable in the ordinary case: the federal government can violate the Constitution, exceed its enumerated powers, abuse the States and denigrate the States’ prerogatives, and the States are powerless to stop it. That deprives the States, and their citizens, a right guaranteed by the Founders. Again, as with so many parts of the Texas Plan, this Tenth Amendment reinforcement does not protect the States as ends in themselves. The point is that the rule of law requires someone to keep the federal government in check. And the States—with judicially enforceable rights to challenge breaches of the enumerated powers—are the ideal parties to do it.

The Texas Plan also addresses concerns about a “runaway convention,” and suggests the states can by statute limit the scope of the amendments to be considered:

It is true that Article V does not expressly authorize States to limit conventions to particular issues—but the problem for would-be critics of the Texas Plan is that Article V also does not require general and open-ended conventions. Indeed, that is by design. As noted above, the whole point of the second path for proposing amendments was to empower States to propose amendments to the Constitution.

There is a lot to consider in this plan. It cites may legal scholars, including Gary Lawson, Randy Barnett, Richard Epstein, David Currie, Steve Calabresi, Phillip Hamburger, Gerard Magliocca, Ilya Somin, Ernie Young, and others.

That the Governor of one of the most populous and prosperous states in the Union released it adds a significant gravitas to the proposal. It’s possible that other states will latch onto the plan.

I often tell my students that they will likely never see a constitutional amendment ratified in their life time. But if we get to 2/3 of the states, we may have a convention. What a fascinating exercise that would be!