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Volokh Conspiracy

Today in Supreme Court History: November 18, 1811


11/18/1811: Justice Gabriel Duvall takes judicial oath. Professor David P. Currie said that an "impartial examination of Duvall's performance reveals to even the uninitiated observer that he achieved an enviable standard of insignificance against which all other justices must be measured."

Justice Gabriel Duvall


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    1. Exactly. "It will be universally admitted that the right to freedom is more important than the right of property."

      1. That must be some kind of lawyer speak. Of what use is the right to freedom (whatever that is) without the right to own and control property?

        If you start from self-ownership, property comes baked in right at the start and is the foundation of all other freedoms and rights, including the mysterious "right to freedom".

        1. Look into that case before you speak. It involved a slave seeking her freedom.

          1. Try understanding the common sense meaning of "self-ownership" before you claim my comment is off-the-mark.

            1. Try reading the case and having a base of knowledge before wading into things you know nothing about and beclowning yourself.

              HA HA! Who am I kidding? Since when is even the smallest bit of knowledge considered a predicate to hold forth with an opinion? Heck, the modern conservative would appear to believe that all that fancy book learnin' is a direct impediment to spewin' forth.

            2. It was not "lawyer speak" (as you put it) in the context of the case. It had a deep and important meaning to someone wanting her freedom.

            3. You are free because you have that as an inalienable right, not because you own yourself.

              Hence you cannot sell yourself into slavery. The best you can do is sign an idiotic contract approximating such, then, when it becomes unendurable, stop your end of the contract, and become financially responsible for the failure. Assuming you can find a court to uphold unconscionable terms. But never expect the government to return you to that state in any case, because you don't own yourself in your property sense. Nobody does.

              1. The closest parallel I read was long ago in an already ancient book on whether the English Parliament could permanently bind itself. The idea was that no, it could not.

                "This is not a paternalistic command, but rather a recognition of the ultimate sovereignty of the parliament."

                So, too, you have freedom as an inalienable right.

      2. “It will be universally admitted that the right to freedom is more important than the right of property.”

        Even as regards slavery, this statement was far from self-evidently true in 1811. See War, Civil (1861-65).

        1. It was certainly not even true to Chief Justive John Marshall. Which is why Duvall was alone on the Court in that case.

  1. Let's not erase Breyer please.

    1. Breyer's extremely relevant in IP law, sentencing law, and the Establishment Clause.

      1. IP is a "let's haze the new justice" category and sentencing is not much sexier.

        As I've said before, not even his family will recall he was on the court 6 months after he is gone.

        1. How are the residents of Can't Keep Up, Ohio handling the presidential election result, Bob?

          Is there a single resident of your town who will be remembered six months after replacement?

        2. If you want to say IP (a significant portion of the US economy) is not important, OK, I guess. But sentencing? That's like depriving people of their basic liberty, which makes it super-important. And Breyer authored the operative compromise, whereby the guidelines exist but are not mandatory.

          And you didn't even mention the Establishment Clause. Breyer's important.

          1. Bob thinks Gideon was wrongly decided and that there should be less defense attorneys on the bench (compared to the minuscule amount we have now). Any sentencing law change that doesn’t result in a life sentence for everything is insignificant to him.

  2. How about less "this day in the Supreme Court" and more learned commentary on the law that is affecting people's daily lives - Like State travel restrictions, findings by State Supreme Courts on their constitutionality and how these things continue to be ratched up.

    1. I'm sure they will prioritize their column by your requests, that is what they live for.

      1. Most of them live for the adulation of half-educated bigots and obsolete culture war casualties -- and for the proposition that our better schools should emulate our weakest schools by hiring more movement conservatives.

        1. It will be really funny to see one of the people you condemn being your jailer one day in the not so far off future...

          1. People were laughing at Giuliani in court yesterday. Repeatedly. Openly. The judge, I was told, was hiding his mouth behind his hands during some of it.

            The judge apparently asked Giuliani to identify a proposed standard of review. Giuliani said he hadn't really thought about it but that 'the normal one, I think" would probably work.

            Giuliani also apparently kept returning to assertions of 'nationwide, extensive fraud,' and when the judge mentioned that such claims did not appear to be before the court, Giuliani assured the court they would be covered by his "exhibits."

            Giuliani's performance reportedly vindicated the judgment of the lawyers who elected not to challenge his entitlement to argue in court yesterday -- the closest to a legitimate, current bar admission anyone could find was an administrative suspension somewhere -- because they figured Giuliani's participation would hurt the Trump campaign's chances.

            This is the class of people you figure I should be worried about, Jimmy?

            1. Please oh please keep on lumping people into stereotypes just to reinforce your own biases.

        2. I kinda doubt any Conspirators live for your adulation. On the other hand, they might have a virtual chalk board somewhere tallying up your seals of disapproval.

          1. I have no doubt.

            Everyone in my family (other than the college student) has at least one advanced degree. I live in a modern, successful, educated community. I prefer science and reason to superstition and stale dogma. I am not a White nationalist, a gun nut, a disaffected incel, a birther, or a strident gay-basher. I do not consider Ted Cruz a libertarian dream date. I am not on the spectrum. I do not pine for good old days that never existed.

            The Conspirators have no interest in what I think.

            1. The funny this is that you wrote this and found absolutely nothing with your self-description.

  3. The Founding Fathers envisioned that our federal government wouldn't do much and would be run by men who would be completely unremarkable since there wouldn't be much for them to do. This was true for the first 100-125 years of the Republic. If your job was to go to DC to sit around and do very little, you knew you were doing your job well.

    1. I remember reading Moon is a Harsh Mistress and the line about making it easier to repeal laws than create them. It would be fascinating to have a chamber of Congress whose powers were limited to repealing laws, and which could be done by their majority vote alone, not needing either the House or Senate to concur, not needing Presidential approval, and not subject to Presidential veto.

      Can you imagine the election campaigns, the promises, the resume bragging?

      That one change would do wonders for the country.

  4. “It appears to me that the reason for admitting hearsay evidence upon a question of freedom is much stronger than upon cases of pedigree or in controversies relative to the boundaries of land. It will be universally admitted that the right to freedom is more important than the right to property.”

    “And people of color from their helpless condition under the uncontrolled authority of a master are entitled to all reasonable protection.”

    Mima Queen and Child, Petitioners for Freedom, v. Hepburn. Duvall, J., dissenting.

    It seems reports of his insignificance have been greatly exaggerated.

    1. People have varying ideas as to what’s significant and what’s not.

      1. His dissent made no difference whatsoever in the life of a single slave.

        Unfortunate but true.

        1. With better press, it could have have ranked as one of the Court’s great influential dissents.

  5. In this post, Josh Blackman writes that Gabriel Duvall took the judicial oath on November 18, 1811.

    According to the Federal Judicial Center, Duvall was confirmed by the Senate and received his commission on November 18, 1811. CQ Press also lists November 18, 1811 as the date that Duval was confirmed by the Senate. It further states that Duvall took the judicial oath on November 23, 1811.

    1. This is likely false flag fake news guised as agit prop to discredit the Blackman.

  6. Today's Noble Prize for achievement in identifying error in "This Day In Supreme Court History" is awarded to QuantumBoxCat.

    Any formal celebration of this award must await termination of pandemic-related restrictions on unusually large gatherings -- but congratulations, QuantumBoxCat.

    1. LOL

      In ordinary times we could have rented out a stadium.

  7. “And people of color from their helpless condition under the uncontrolled authority of a master are entitled to all reasonable protection.”

    Was he talking about how Democrats view minorities...?

    1. I’ve noticed that conservatives like to trot out the black voters are enslaved on a “Democrat plantation” meme, which are are doing a version of. It’s incredibly racist and demeaning. It assumes that voters of color aren’t intelligent enough to understand the comparative values of what the parties are offering and to make a rational choice between them.

      1. And there is nothing racist and demeaning about assuming minorities will vote for your party and if they don't Joe Biden, a white dude, will dictate who is black and who is not.

        1. Non sequitur.

          Black people make up a good part of the Democratic Party leadership. And who was their last President?

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