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


Why is there a separate federal statute for attempted murder of a member of Congress?

January 9th, 2011

From the criminal complaint for United States v. Jared Lee Lougher, I learn of a new federal statute, 18 U.S.C. 351(c), which provides:

(a) Whoever kills any individual who is a Member of Congress or a Member-of-Congress-elect, a member of the executive branch of the Government who is the head, or a person nominated to be head during the pendency of such nomination, of a department listed in section 101 of title 5 or the second ranking official in such department, the Director (or a person nominated to be Director during the pendency of such nomination) or Deputy Director of Central Intelligence, a major Presidential or Vice Presidential candidate (as defined in section 3056 of this title), or a Justice of the United States, as defined in section 451 of title 28, or a person nominated to be a Justice of the United States, during the pendency of such nomination, shall be punished as provided by sections 1111 and 1112 of this title.

(c) Whoever attempts to kill or kidnap any individual designated in subsection (a) of this section shall be punished by imprisonment for any term of years or for life.

I didn’t realize that a crime against certain types of government officials warranted a different penalty.

Update: Professor Magliocca posts an answer to my question here:

The shooting of Judge Roll and Congresswoman Giffords raises an interesting point about federal jurisdiction.  It seems obvious that this attack would be a federal crime, but that is a recent development.  Until the 1960s, the assassination of a federal official was treated as ordinary state-law murder unless it happened in Washington DC or in a federal territory. The most famous example is Lee Harvey Oswald.  Killing the President in Texas was not a federal offense in 1963, just as it wasn’t in 1901 when Leon Czolgolz shot William McKinley in Buffalo and was convicted of murder in New York.  Indeed, this is why Oswald was being held in the local Dallas jail that made it so easy for Jack Ruby to do what he did.

Is Article V obsolete? Interesting New Article on Constitutional Amendments and Court Packing Scheme.

December 4th, 2009

Gerard N. Magliocca has posted The Child Labor Amendment and the Court-Packing Plan on SSRN (H/T Legal Theory Blog).

Today, it is almost accepted as conventional wisdom that the Article V Amendment process is antiquated and outdated. FDR acknowledged the weakness of this process as he unveiled his Court Packing plan to effect constitutional change through the Judiciary:

On March 9, 1937, President Franklin D. Roosevelt delivered a much-anticipated radio address to the nation defending his proposal to “reorganize” the Supreme Court.3 In that speech, FDR argued that the repeated invalidation of New Deal statutes by the Justices meant we had “reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself.”4 But this crisis could not be solved by a constitutional  amendment in part because of the “long course of ratification by three-fourths of all the States” required by Article Five.5 The only solution, according to the President, was to “infuse new blood” into the Court by adding many new Justices immediately.6

The article discusses the ratification of the Federal Child Labor Amendment, which was passed by hte Congress, and ratified by half the states, but never made it to full ratification. The article tracks the failure of the amendment process as a contemporary reaction to FDR’s court packing scheme:

This Article explores the relationship between the Child Labor Amendment and FDR’s Court-packing plan. Conventional wisdom says that the long fight to ratify the CLA soured the President on the Article Five process and persuaded him that challenging the Justices was the better option.12 The truth is far more complex. At the same time that the Administration was arguing that the deadlock over the CLA demonstrated that textual amendments were not a realistic way to achieve legal change, FDR was putting on a full-court press for the ratification of that amendment.13 More perplexing still, the President made it clear in his private letters during these weeks that he had no faith in the ratification process.14

But if FDR doubted the ratification process, why he did he put so much energy into ratifying the FCLA:

This raises an obvious question—why did FDR put his authority behind the CLA?

Though there is no smoking gun describing the President’s motives, the best explanation is that he supported the CLA because he thought that it would fail and that highlighting that failure would help the Court plan. FDR’s foes saw through this game and tried to call his bluff by supporting a revised version of the CLA that would have required state ratification conventions to vote on the proposal within ninety days; an idea that would have undercut the rationale for Court-packing.15 All of these maneuvers came to an abrupt end, however, when the Justices executed their “switch-in-time” a month after the President’s address.16 Thus, the Child Labor Amendment ratification debate, which reached its climax at about the same time that the Court-packing plan was proposed and the Justices flipped, sheds new light on that crucial constitutional moment.

This article has strong implications for the current constitutional debate, and how to effect constitutional change.

The most important takeaway from this story is that the view that state ratification is a high hurdle for constitutional amendments is an interpretation given to Article Five in 1937 and not a fact. When Congress passed the CLA in 1924, the prevailing consensus was that state legislatures were nothing but a rubber stamp for amendments.17 By 1937, however, state legislatures were viewed as a major obstacle. In part, this was because of the difficulties that the CLA encountered in the States. In part, though, this transformation was the product of FDR’s deliberate effort to convince people, contrary to the historical record, that state ratification of amendments was impossibly hard. His argument on this issue became a fixed point in constitutional practice even though his attempt to pack the Court failed.

Textual changes to the Constitution did not end with the defeat of the CLA, though fourteen years would pass before another Article Five amendment was ratified.148 What did end was the premise that getting these proposals through state legislatures would be easy. The President’s plan to make the CLA into the poster child for the process was successful even though its object—supporting the Court-packing plan—was not.149 The failure of the Equal Rights Amendment in the 1970s reinforced this interpretation and turned the futility of state ratification into a truism.150

By showing that the current construction of Article Five is just that—a construction rather than a fact—this Article seeks to provoke new thought about the merits of using the constitutional amendment
process. While there are certainly circumstances where agreeing on a textual formula for legal change or moving that language in Congress is not be the best course of action, the assumption that federalism is a prohibitive obstacle to political reform should be reexamined.151

Very good read. Highly recommended. I have blogged about Professor Magliocca’s work before.

I definitely intend to incorporate this article into my thinking and writings on constitutional law. The argument that Article V is a nullity is very prominent in constitutional scholarship, including in the Constitution in 2020 (see some of my coverage here and here). If Article V is revisited, perhaps the Constitution can be amended through Article V as it was intended. And, maybe there would be less of a need for Professor Ackerman’s theory of Landmark Legislation causing Constitutional Moments, and thus, Constructive Constitutional Amendments.

Hate Crimes Act Based on 13th Am. and not Commerce Clause. Does Administration think Morrison is in Jeopardy?

November 12th, 2009

I previously blogged about the OLC’s memo justifying portions of the Hate Crimes Act on the 13th amendment, and not the 14th amendment and the the commerce clause.

As we explained in 2000, see Senate Report at 16-18, we believe Congress has authority under section 2 of the Thirteenth Amendment to punish racially motivated violence as part of a reasonable legislative effort to extinguish the relics, badges and incidents of slavery. Congress may rationally determine, as it would do in S. 909, that “eliminating racially motivated violence is an important means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and involuntary servitude,” and that “slavery and involuntary servitude were enforced . . . through widespread public and private violence directed at persons because of their race.” S. 909 § 2(7); see also H.R. 1585, 110th Cong., § 1023(b)(7) (2007) (same).

Like the current 18 U.S.C. § 245, proposed section 249(a)(1) of title 18 would not be limited by its terms to violence involving racial discrimination: It would criminalize violence committed “because of the actual or perceived race, color, religion, or national origin of any person.” S. 909 explains (§ 2(8)) that “in order to eliminate, to the extent possible, the badges, incidents, and relics of slavery, it is necessary to prohibit assaults on the basis of real or perceived religions or national origins, at least to the extent such religions or national origins were regarded as races at the time of the adoption of the 13th, 14th, and 15th amendments.”

Given our conclusion that Congress possesses authority to enact this provision under the Thirteenth Amendment, we do not address whether Congress might also possess sufficient authority under the Commerce Clause and/or the Fourteenth Amendment. See United Slates v. Nelson, 277 F.3d 164, 174-75 & n.10 (2d Cir. 2002).

I commented:

“OLC then discussed Lopez and Morrison, but curiously did not discuss Raich. Very odd, especially in light of the fact that SG Kagan did not argue that the Commerce Clause justified SORNA in Comstock. See Ilya Somin’s interesting post here: Are there movements in the Obama White House to limit Congress’s Commerce Power? I hope so.”

Professor Magliocca at Concurring Opinons has an interesting comment, that seems to support my theory.

A few weeks ago the President signed the Matthew Shepard Hate Crimes Prevention Act into law.  The Office of Legal Counsel issued an opinion concluding that the Act is constitutional under Section Two of the Thirteenth Amendment, relying heavily on the Second Circuit’s analysis in United States v. Nelson, 277 F.3d 164 (2d Cir. 2002).

This could be a significant doctrinal development.  The OLC’s analysis, of course, was driven by concern about whether a federal hate crimes bill would be vulnerable under the Supreme Court’s holding in United States v. Morrison. There’s more going on here though. The Thirteenth Amendment, unlike the Fourteenth, does not have a state action requirement.  To the extent that lawyers start using the Thirteenth to sustain congressional action on racial discrimination, that would render Morrison a dead letter.  This line of thought was rejected in the Civil Rights Cases (over Justice Harlan’s dissent), but may be making a comeback.

Does the Obama Administration fear Morrison? Or do they just want to reign in the Commerce Clause Jurisprudence? How does Comstock figure into this? Questions to be resolved.

Why Is Teaching Constitutional Law the most difficult course?

October 13th, 2009

My academic goal is to one day teach Constitutional Law. it is the topic I am most passionate about, and get so excited talking about it. But is it the toughest course to teach?

At Concurring Opinions, Gerard Magliocca writes “I must admit that I find Con Law the most difficult course to teach, even though it’s the subject that I enjoy the most.  Why is that?””

1.  The subject matter is so vast that you can only scratch the surface in one semester.  To some extent, that is true for Torts or Contracts, but much less so.  Constructing a syllabus that must omit so much important material is frustrating.
2.  Students often come into con law with strong views about the material that they lack in other subjects. This can makes them less open to discussion or alternative views.  I want people to be passionate about the subject, but I’d like them to form their opinions after reading the cases, not before.  Many folks have a fixed view about abortion or affirmative action, for example, no matter what the cases say.
3.  Con Law cannot be taught well without a lot of historical background.  Many students (I find) don’t know a lot about history.  Since it’s hard to provide the full context for each and every case (e.g, what was the New Deal about?), I often think that people do not get as much from the opinions as they should.  I’m trying a different casebook next time that has more history — we’ll see if that helps.
4.  Con Law is not just about what the Supreme Court says.  Most (though not all) casebooks, though, do not include significant non-judicial texts.  I try to remedy this by handing out things like Lincoln’s First Inaugural or FDR’s Fireside Chat on “Court-packing” as examples of constitutional analysis that are just as useful from a teaching standpoint as Marbury.

Very interesting points. Constitutional Law is so fascinating because it is so deep. Students (myself included) definitely had lots of views coming into class. Also Con Law requires a huge amount of history. That is why I am such a big fan of Mason’s Founders Constitution class. All 1L’s must take an entire course reading the Federalist, the anti-Federalist, and other early writings that influenced our founding generation. That class provides a huge amount of context.

I agree with the author’s fourth point. The Constitution is not just about what the Supreme Court says. Though, I would argue that speeches given by Lincoln and FDR after the Constitution was written shed no light on the original meaning of the Constitution. That’s where the Founders Constitution class comes in.

One day I hope to teach Con Law. I am assisting Judge Gibson teach a Federal Courts class at Penn State Law in Spring 2010 and am now constructing the syllabus. I’ll post my thoughts about that later.