Tuesday, August 14, 2018
Nader, on Citizens United
At almost every event at which I speak about the Constitution or the Supreme Court to a general audience, somebody will raise a hand and say they strongly oppose the Court's Citizens United ruling. I always respond by asking that person to explain, "for the benefit of the audience," what the Supreme Court decided in Citizens United. Without fail the person (a) does not know what the organization, Citizens United, was and what the government sought to prevent it from doing and (b) wrongly reports that the Supreme Court held in the case that corporations are persons with a right to make unlimited monetary contributions to candidates for political office. I then explain what the case was actually about (a challenge, by an organization seeking ad-supported video-on-demand distribution of a documentary critical of Hillary Clinton, to the provision of the Bipartisan Campaign Reform Act prohibiting corporations and unions from using their general treasury funds to make independent expenditures for electioneering communications). With the facts and holding properly described, I then engage the audience in a conversation about the merits of the decision. I go through this exercise not to call out an unsuspecting audience member but to demonstrate the importance of understanding precisely the facts of a case and the contours of a judicial ruling and the associated dangers of relying on mass-media sound bites that court decisions often generate. Lawyers, of course, should know these things already. But here is how Ralph Nader describes Citizens United in his letter published today in The New York Times (in response to a recent column by ACLU Legal Director David Cole): "Citizens United allows unlimited political contributions by corporations for or against candidates for elective office." Nader surely knows what Citizens United was about. His smarmy phrasing--"political contributions by corporations for or against candidates for elective office"--thus appears designed to reinforce the perception that the case involved corporations giving money to political candidates. It's one thing to alert the public that the Supreme Court has made a mistake. It's another to criticize an error never made.
Suing the President for ACA Sabotage
I have been detailing the GOP sabotage of Obamacare here and elsewhere for several years now. President Trump's blatant and boastful use of his executive authority to dismantle a law that has twice been upheld by the Supreme Court and that Congress has not repealed after more than 50 attempts to do so takes that sabotage to a new level. A year ago, I argued that the President's actions amount to a Take Care clause violation. A lawsuit was finally filed last month, by several cities, making that claim.
Friday, August 10, 2018
Podcast on John Bingham
Gerard N. Magliocca
Yesterday the National Constitution Center released an hour-long podcast that I did with Kurt Lash on John Bingham and the Fourteenth Amendment. You can find the podcast here.
Wednesday, August 01, 2018
What's the deal with 3-D plastic guns -- and what's the Freedom of Speech got to do with it? [UPDATED Aug. 2]
Tuesday, July 31, 2018
Taking Section Two of the Fourteenth Amendment Seriously
Gerard N. Magliocca
Building on Professor Fishkin's post, my new article on Section Two of the Fourteenth Amendment was published today. Section Two gets far less attention than Section One, but Section Two is vital for two reasons. The first is that this is the source of the rule that all persons shall be counted for purposes of national representation. (Litigation is pending in the Southern District of New York on whether the Commerce Department's proposal to add a citizenship question to the next census is unlawful in part because that decision was made to discourage an accurate count of non-citizens).
Monday, July 30, 2018
Count All the People
The Fourteenth Amendment sets out a simple rule for the interstate allocation of political power in the United States: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” With this sentence, 150 years ago this month, the Constitution obliterated the three-fifths clause. Later, just under a century ago, we incorporated all Native Americans into the body politic by statute, so there are no more “Indians not taxed.” These changes have wrought a beautifully straightforward rule: our federal government allocates political power according to “the whole number of persons.” Not just the citizens. Not just the adults. Not just the people with valid immigration status, or the people a state has decided in its wisdom to make eligible to vote. All persons.
Sunday, July 29, 2018
Understanding the Cycles of Constitutional Time, or, Why Things Are Going to Get Better
I have posted my latest article, The Recent Unpleasantness: Understanding the Cycles of Constitutional Time, on SSRN. This is the written version of the 2017 Addison C. Harris Lecture at the University of Indiana. Here is the abstract:
Wednesday, July 25, 2018
Accountability for the Internet of Torts
Tuesday, July 24, 2018
Introducing the Internet of Torts
Monday, July 23, 2018
The Rulification of Penalty Kicks—and a Reform Proposal