Today in Supreme Court History: October 28, 1787

10/28/1787: James Wilson gives speech to the Pennsylvania ratification convention, arguing that there was no need for a Bill of Rights.

Justice James Wilson

Comments

[Dan Schiavetta]

Jackson v. Allen, 132 U.S. 27 (decided October 28, 1889): case should not have been removed because diversity of citizenship not clearly established; vacating judgment after trial and remanding to Circuit Court with directions to remand to state court (interestingly the Court notes that citizenship at the time of removal was relevant, as well as at the time of commencement; I thought only the latter was looked to) (I know from experience that federal judges will insist on tracking down every silent partner of every party before ruling on diversity)

Bartone v. United States, 375 U.S. 52 (decided October 28, 1963): a federal court can't extend a sentence for violation of parole without the parolee being present (see Fed. R. Crim. Pro. 43)

Fuller v. Alaska, 393 U.S. 80 (decided October 28, 1968): here the Court holds that a recently announced exclusionary rule (as to evidence from illegal wiretaps) is to be applied only prospectively

[wolfefan]

As always, thanks for your research! I found myself fascinated by Wilson's glasses. I looked at several other portraits of him, and while one seemed to show the shafts of the glasses going into the hair/wig, presumably to rest on the ears, most look kind of like this one where the shafts appear to be entirely on the outside of the hair, perhaps pressing into the head a bit to hold the glasses in place.

[bernard11]

Is that a wig? If so, maybe the glasses are attached to it.

[Mr. Bumble]

Wonder where we would be today if Wilson's argument had prevailed?

[Krychek_2]

Given the so-called originalist argument that you don't have any rights that aren't specifically mentioned in the Constitution, probably not in a good place. "Oh, you think you're entitled to a trial by jury/free speech/protection from unreasonable searches and seizures? Well, THERE'S NOTHING ABOUT IT IN THE CONSTITUTION, just like there's nothing there about abortion and gay marriage."

[Dan Schiavetta]

Not sure this is relevant, but Roger Sherman objected to providing a listing of rights. “We are not repealing the state constitutions, which being in force are sufficient.”

[Krychek_2]

Most of the state Constitutions at the time provided far fewer individual rights than the federal Bill of Rights does. Several states could take your property under eminent domain without providing any compensation at all. The list of punishments not considered cruel and unusual makes really gruesome reading. And free speech only forbade prior restraint. Oh, and you weren't entitled to counsel if you were charged with a crime.

[Dan Schiavetta]

Thanks — I don’t know that

[John F. Carr]

The Massachusetts Declaration of Rights was an inspiration for the Bill of Rights. It has been interpreted differently, partly due to language and partly due to the whims of judges. Under state law the right to keep and bear arms is only a collective right and they can grab your guns, knives, brass knuckles, pepper spray, and so on. Under state law the the right against self-incrimination includes the right not to produce evidence against yourself. You can't be criminally punished for refusing a breathalyzer test and refusal can not be used against you in a criminal case. Officers of corporations can refuse to produce incriminating records that would not be protected under the Fifth Amendment.