Author: Gerard Magliocca

I started listening to the oral argument in Frontiero v. Richardson. In those days, the argument audio picked up some of the chit-chat among the Justices on the bench. At the start, you can clearly hear someone (most likely Chief Justice Burger) saying “short skirt” repeatedly. Here is the link

I can’t say for sure to what or who this comment refers. But Ruth Bader Ginsburg was sitting at counsel’s table and would soon make her argument. In any event, it’s a rather odd kickoff to an argument on sex discrimination.

Here’s another way in which the “ceremonial civic space” has shrunk. The Vice-President used to be someone who did very little. He was therefore useful for presiding at formal events or (in the cliche) representing the United States at funerals.

This came to an end with Richard Nixon and/or the Cold War. Since then, Vice-Presidents have been important partisan and administrative officials.

In October 1972, Birch Bayh published an article in the Notre Dame Law Review entitled “The Need For the Equal Rights Amendment.” Note the date. This was after the ERA was sent to the states for ratification but before Roe and Frontiero. What you see through this window is a different view of what constitutional law could have looked like.

While Senator Bayh repeated many of the standard arguments for the ERA, he made two points that startled me. Here is #1:

“[A] law which bases legal consequences on a characteristic unique to only one sex (e.g., the ability to bear children) would be fully constitutional.”

This was saying that state abortion bans would be valid under the ERA, though Bayh never used the word “abortion” in the article. T

#2 involved “the rights to privacy established in Griswold v. Connecticut. As the House and Senate Committee Reports on the Amendment both stated, ‘[T]his right [to privacy] would . . . permit a separation of the sexes with respect to such places as public toilets, as well as sleeping quarters of public institutions.”

This right to privacy is very different from the one that we learned in school. Abortion is not included, but other issues that are still considered valid sex distinctions (bathrooms in public buildings) are. It’s not hard to see how Roe pulled the rug out from under Bayh’s arguments. I don’t know, though, to what extent he anticipated Roe. The Bayh Subcommittee did hold many hearings on that case (more than on any other, which is telling) but the ERA rarely came up.

A side note to my prior posts on the unitary executive. The Senate is our only institution that has a different ceremonial and functional head. The Majority Leader runs the Senate. But the President Pro Tempore is the leader who is mentioned multiple times in the Constitution. (The Majority leader is not mentioned). The President Pro Tempore is now just the most senior Senator in the majority, though that isn’t always how the post worked.

What does the President Pro Tempore do? Receive special communications (say, under the Twenty-Fifth Amendment). Preside over the Senate for some ceremonies when the VP cannot or will not. And so on.

Now why not have the Majority Leader do this? The Senate could, of course, make the President Pro Tempore the Majority Leader. Presumably they think that there is some value in separating these roles in a way that the House and the Executive do not. (The House could, of course, follow the British tradition and make the Speaker someone who is not in the party leadership, but we’ve never really done that.)

What about the Chief Justice and the Supreme Court? That’s another post.

I noted earlier this week that the American Constitution is an outlier in not separating the head of state from the head of government. If that’s a serious flaw, then how did we manage that problem for so long?

The answers largely sound in political customs that gave the President the appearance of being above politics in some sense. These include:

1. George Washington and some of his successors stayed above the fray and emphasized their ceremonial role.
2. Presidents and presidential candidates did not campaign for that office until the end of the 19th century. It was seen as undignified or gauche.
3. Presidents did not campaign for another candidates. When Andrew Johnson did this in 1866, his efforts were widely panned and he was impeached, in part, for acting in a way that was beneath the dignity of the office. The taboo held until (I would say) 1948 and Truman’s attack on the “Do-Nothing” Congress.
4. When party conventions became the way of choosing candidates, those vying for the nomination typically did not appear at the convention and did not give an acceptance speech. This custom started eroding toward the end of the 19th century but did not end until 1944.
5. Party bosses were seen (or blamed for) the mechanics of the party. They chose the President and had significant independence from him. The thought that the President was the party boss did not emerge until after World War II.
6. The Cold War gave post-World II presidents an aura of sorts as the “leader of the free world.”

The end of the Cold War left the head of state fiction on shaky ground, which finally collapsed in 2016. Is there anything that can bring it back? I’ll explore that issue another time.

The recent discussion about access to the Justices’s papers misses an important point. They may be worried about not receiving candid advice from their clerks and protecting them in their future careers.

Think about it. Justice X will be dead when his or her papers are released. But most of the clerks will be alive and mid-career. Maybe they will be under consideration as future judges or running for office. Disclosure of memos they wrote when young could be highly embarrassing. Or concern about that could cause them to pull their punches when they write a bench memo to their boss.

I wonder, for example, what I would think of the bench memos that I wrote if I saw them now. Probably I’d think they were terrible, but who knows.

The ERA is the toughest nut to crack in my Birch Bayh project. Is there anything new to say about something so widely discussed? Slowly, though, I am finding some new things as a dig through the Archives. One was the point that I made the other day about the coincidental interaction of Reed v. Reed and the ERA’s consideration in the Senate Subcommittee.

One line of inquiry that I was pursuing was that Roe v. Wade killed the ERA. But now I’m doubtful that’s true–the evidence is not compelling. I now have a new hypothesis. It is that the amendment’s supporters did not do enough outreach to the states.

The Twenty-Fifth and Twenty-Sixth Amendments were preceded by extensive surveys of state officials (legislators and election officials) to solicit feedback. This both shaped the proposal Congress made and built support in the states for ratification. As Tip O’Neill used to say, “People like being asked.” The same was true after these Article V proposals passed Congress. Many letters were swapped between Senator Bayh or his staff and state officials on ratification itself.

There was no similar survey or outreach for the ERA. This may have been a serious mistake. Congress did not have as good a feel for what the public would accept and state officials did not feel included. Why was there less consultation? I don’t know, though overconfidence is one explanation.

Things got worse when Congress extended the ERA’s ratification deadline in 1978. At this stage the Subcommittee showed disdain for the states. The right of a state to rescind its ratification was denied (erroneously, in my view). Reliance by the states on the original 7-year ratification limit was dismissed. Of course, ratification did not occur.

I am not saying that this was the only reason for the ERA’s defeat. But it is a factor that has not received adequate attention.

Here is the draft paper.

This is the working title of my new paper that will argue that our Constitution is flawed because the head of state and head of government roles are not distinct. I’ve been fascinated by this idea since I was a student, in part because I found Bagehot’s analysis of the English Constitution persuasive. But I’ve never been sure about how to write about this topic until now.

There are two points worth highlighting in this post. One is that the principle that the ceremonial and functional executive should be separate is not one that the Framers thought about. In this respect, it’s different from almost every other constitutional principle, at least stated at a fairly high level of generality. The second point is that our lack of a non-partisan head of state is especially tough in an era of party polarization. (King Charles III, whatever you think of him, is not a Tory or a Liberal Democrat, or a member of any other party.)

More on this in the coming days.

Longtime readers know that “Yes Minister” and “Yes Prime Minister” are my favorite TV shows and contain lots of sharp observations about politics and law. There are many podcasts about classic books or TV shows. There should be one devoted to “Yes Minister.” An American is not in the best position to do this, of course, but I’d be the first to sign up for one if anyone ever made the attempt.

One issue that I’ve gotten interested in is the President’s discretion not to sign a bill instead of signing or vetoing. Donald Trump did this recently for a housing bill in protest of the Senate’s failure to pass his voting bill.

Why did the Framers give the President this option? Perhaps it’s because he could be ill or traveling and they thought that should not stop legislation. In a sense, this scenario implies legislative supremacy. A bill is a law unless the President acts affirmatively to veto.

Another possibility is that the Framers wanted to give the President the option to abstain and stay above the fray or abstain as a form of protest. Sometimes presidents take advantage of this, most notably President Cleveland with respect to the income tax that the Supreme Court struck down in Pollock.

Why I am interested in this, you might ask? I will lay that out in due course.

The question of whether a President can pardon himself is an open one subject to plenty of thoughtful commentary, most notably by my friend Brian Kalt. In some unrelated research that I was doing this weekend, I came across a speech that President Truman gave at the West Point Commencement in 1950.

“As President of the United States, under the Constitution, the President has power to pardon anybody for anything but impeachment. Of course, he couldn’t pardon himself.”

This was kind of a throwaway line, but I don’t think that any other President (save perhaps for Trump) ever discussed this issue publicly.