Saturday, August 25, 2007

Magliocca on Huey Long and the Guarantee Clause: Transformation by Assassination

Constitutional history as a murder mystery. Gerard N. Magliocca, Indiana University, Indianapolis, has posted a fascinating new paper: Huey Long and the Guarantee Clause: Transformation by Assassination. Law reviews should be scrambling for this one. Here's the abstract:
This Article contends that the assassination of Huey P. Long (The Kingfish) of Louisiana was a major turning point in the development of New Deal constitutionalism. Following his election as Governor in 1928, Long built one of the most formidable political machines ever seen in the United States. Indeed, he amassed so much power that contemporary observers routinely called his regime the first dictatorship in our history. For instance, Long abolished minority rights in the legislature, curtailed judicial review, took over the vote counting system, established a State Board of Censors to regulate political speech, and declared martial law against his opponents. Moving rapidly on to the national stage with his election to the Senate – he was Senator and Governor at the same time – Long established a national “Share Our Wealth” movement with the goal of challenging Franklin D. Roosevelt for the Democratic nomination in 1936.
The abuses in Louisiana triggered a broad national debate about whether the State still had a republican form of government as required by the Guarantee Clause of Article Four. Eventually, this outbreak of popular constitutionalism reached the President, who was desperate to find a way to stop Long. Not only did the President discuss the issue in press conferences, but he asked the Justice Department to examine the question in a lengthy memorandum. In August 1935, the House of Representatives took the first step to invoke the Guarantee Clause by forming a Select Committee to examine the question. A few weeks later, however, Long was killed and the inquiry was abandoned.
By cutting this confrontation short, Long's assassin unintentionally laid the foundation for modern judicial supremacy. But for this shocking event, the Special Committee would have almost certainly issued a report defining: (1) which rights being infringed in Louisiana were fundamental; and (2) which institutional practices there were so abusive that they struck at the heart of self-government. Such a report, coming in the midst of the collapse in Lochnerian doctrine, would have been an authoritative act of constitutional interpretation on major issues such as incorporation, voting rights, and the status of political minorities. Instead, the task of filling this vacuum fell entirely to the Supreme Court, which began that effort with the most famous footnote in the law - Footnote Four of United States v. Carolene Products. To a significant extent, Footnote Four's analysis of the conditions under which laws should receive heightened scrutiny was the judicial substitute for a congressional report on Long and the Guarantee Clause.
Accordingly, this Article makes three significant contributions. First, it provides the first detailed treatment (in a law review context) of Huey Long's dictatorship. Second, it documents the last serious effort to use the Guarantee Clause, which disappeared from serious legal discourse after 1935. Third, it provides a window into a fascinating counterfactual world that was only closed off by a highly improbable act.