Author: Gerard Magliocca

Pope Leo, who recently voted absentee in Illinois, must be the first foreign head of state to ever vote in an American election. If another example comes to mind, let me know.

The pardon power is a hot topic. Sai Prakash recently wrote a book on it. So did Jeff Toobin. My former colleague Frank Bowman has a book coming out on it in 2027. Of course, recent pardons by President Trump and President Biden help explain this interest.

The pardon power helps illustrate why of having a single executive is a problem. In many democracies, only the head of state has can pardon. This helps ensure that pardons are not done for partisan reasons.

We can’t do this with pardons. It’s unclear to what extent we can do even this with a power that is not vested exclusively in the President. Congress cannot give an executive power to another executive official who is independent of the President, unless that power is given the Vice-President. Maybe we should do that more often (it’s worth thinking about).

When you think about it, it’s pretty insane that the person 4th in the line of presidential succession is the oldest member of the Senate’s majority party. (Right now, Chuck Grassley–age 93). The Succession Act was written in 1947, which predates the development of the modern Senate Majority Leader (more or less invented by LBJ). The Succession Act needs to be updated.

Maybe there is a Twenty-First Amendment argument against the home distillery ban. What has changed since 1868 is that states get primacy over alcohol regulation. Perhaps that should be read as a restriction at the outer bounds of Congress’s power.

In connection with my project on why America lacks a ceremonial head of state, consider one flawed perspective. The Framers could not have understood the value of such an executive division because there were no models or precedents. Yes the Crown and the Cabinet were separate, but that arrangement was in its early stages and was not so clear to outsiders. Japan in this era had a figurehead Emperor and a governing Shogun, but nobody outside Japan knew this well.

I’m skeptical. Consider that in the Constitutional Convention Washington was the presiding President who said nothing substantive from the chair. This was a good encapsulation of the value of having some separation between the formal leader and the functional one. As President, Washington did something related by making Hamilton his practical Prime Minister and remaining aloof. (George W. was good at being aloof.). If the Framers had created dual positions in 1787, you could easily imagine Benjamin Franklin as the first figurehead.

Perhaps Washington’s rectitude convinced people that Presidents would be judicious in their political involvement and preserve their dignity. If so, that was a mistake. Perhaps people thought that the Vice President would be the ceremonial official, which was not an implausible thought.

UPDATE: Franklin was the President of Pennsylvania’s Executive Council from 1785-1788. This was largely a ceremonial role.

Here’s a skeptical question about the upcoming case on whether Congress can make home distillation of whiskey a crime. Why should we think that a law that has been on the books since 1868 exceeds Congress’s enumerated power? That power is read much more broadly now than it was then. I’m open to persuasion that, for example, there was little or no enforcement of this law. Or that there was some odd discussion of the statute in Congress. Or maybe some notable people like Bingham voted against it–I’ll check that.

Now do I think that this should be a federal crime? No I don’t. But that’s a different issue.

Have I ever made mistakes in choosing article topics? Yes I have. Here are two examples.

Symposium invitations present a special problem. “Write something about X” does not generally lead to great work unless it happens to fit something you are already doing. Sometimes, though, you accept the invitation because a friend asks you, your home law review asks you, etc. I would say that my Symposium pieces are things that I would have not have otherwise chosen, with maybe two exceptions. But I’m sure I’ll still do other symposia.

One regret is that a decade ago I started writing an article on the unwritten constitutional principle of central bank independence. I then decided: “Eh, this will never come up in actual case. It’s too well-settled.” Oops.

One final note. A paper that you abandon is not a mistake so long as you cut your losses soon enough. You learn from those projects and eventually end up using some of that material in other papers.

I thought I’d do some process posts for those who might be interested. My next article (not yet begun) will be “The Real Unitary Executive Problem,” which is that America does not separate the head of state from the head of government. Why did I pick that? Where did that idea come from?

Some articles are the result of longstanding curiosity. In law school, I wrote a mediocre paper arguing that some of the then-new democracies in Eastern Europe ought to bring back their royal houses to serve as titular heads of state. Part of the motivation was my fascination with Bagehot’s book on The English Constitution and its discussion of the “dignified” and “efficient” elements of a political order. I’ve returned to that source many times over the years.

Another factor in topic selection is whether I can accumulate enough “Gee whiz” facts to sustain a paper. A decade ago, I started writing a paper on the same issues that I will write about now. I abandoned (though did not discard) that project because I did not have enough fresh material. Put another way, my approach tends to be inductive, but it must be inductive enough. Now I’ve found more and enough more to my satisfaction.

Circumstances also influence topic selection. The current President highlights the problem of not separating the head of state and head of government roles. So did the aftermath of the 2020 presidential election.

New projects tends to build upon the previous one. In writing about Justice Jackson’s Youngstown concurrence, I talked about his discussion of the President’s prestige as head of state and head of party as informal sources of influence over public opinion. That lends itself to a separate power about the head of state role itself.

Finally, there appears to be a gap in the literature here on this topic. I find that attractive in topic selection for books and articles.

Next post will be about why I don’t pursue certain topics.

I think I have a new angle on the Declaration, just in the nick of time before America 250 ends. There are some striking parallels between the Declaration and the 14th Amendment when you look at them panoramically. It’ll take me some time to work this out, but here are some examples:

1. The Declaration states that the colonies have the right “to provide new Guards for their future security.” This is exactly what the loyal States did in the 14th Amendment as against the ex-Confederate States.
2. They both emphasize equality and rights.
3. They were both the products of civil war (as was Magna Carta).
4. In both cases, we care about the general language while the authors cared more about the specific language.

Anyway, more to come.

The Pentagon’s proposal to livestream an execution by firing squad may have First Amendment implications. Courts have steadfastly rejected claims by the media that they have a constitutional right to broadcast executions. But they have done so in part with the argument that public executions were a relic of the past. (The 7th Circuit used this rationale just last year.) If they are not, then it’s not clear to me why the Government gets to choose which ones get televised and which ones don’t.

UPDATE: You could also imagine an 8th Amendment claim here that might delay the execution.

I’m reading through the transcripts of the Bayh Subcommittee’s hearings on Roe v. Wade. The legal and moral arguments on abortion are similar to today. What is different is the state of medical knowledge.

For example, one question that came up repeatedly was whether IUDs would be prohibited by an abortion ban that began at conception. The answer was “We don’t know,” because at that time doctors were unclear about whether IUDs prevented conception, implantation, or both. That made framing a ban with that definition of life very tricky.

Likewise, there was a discussion at one point about pregnant women using DES and how that might play into the debate. Mass torts scholars know, of course, that DES was later taken off the market due to horrible side effects that led to the “market share theory” of liability in Sindell.

Finally, some of the claims about pre-natal development then strike me as incorrect given what we know now. Not to mention advances in care for premature births and genetic testing.

I’m reading through the Senate’s Report on the 1968 Omnibus Crime Act. One part of this law purported to set aside Miranda in federal criminal cases. (This was held invalid by the Court in 2000). Another portion imposed various gun control measures. Here was the Report’s punchline about the 2nd Amendment:

“It is clear, for example, that a State law prohibiting the carrying of revolvers without a license, or forbidding possession of concealed weapons, does not violate either the Federal or that State’s constitution. And it is clear that no body of citizens other than the organized State militia, or other military organization provided for by law, may be said to have a constitutional right to bear arms.”