Today in Supreme Court History: February 1, 1816

2/1/1816: Second Bank of the United States chartered. The Supreme Court would uphold the constitutionality of the Bank in McCulloch v. Maryland.

Comments

[apedad]

Re: McCulloch v. Maryland

Facts of the case

In 1816, Congress chartered The Second Bank of the United States. In 1818, the state of Maryland passed legislation to impose taxes on the bank. James W. McCulloch, the cashier of the Baltimore branch of the bank, refused to pay the tax. The state appeals court held that the Second Bank was unconstitutional because the Constitution did not provide a textual commitment for the federal government to charter a bank.

Question

Did Congress have the authority to establish the bank? Did the Maryland law unconstitutionally interfere with congressional powers?

Conclusion (Unanimous!)

In a unanimous decision, the Court held that Congress had the power to incorporate the bank and that Maryland could not tax instruments of the national government employed in the execution of constitutional powers.

Pursuant to the Necessary and Proper Clause (Art. I, Section 8), Chief Justice Marshall noted that Congress possessed powers not explicitly outlined in the U.S. Constitution. Marshall redefined “necessary” to mean “appropriate and legitimate,” covering all methods for furthering objectives covered by the enumerated powers. Marshall also held that while the states retained the power of taxation, the Constitution and the laws made in pursuance thereof are supreme and cannot be controlled by the states. (oyez)

We now have the Federal Reserve System as the central bank of the US.

Among the Fed’s responsibilities is Bank Regulation.

Bank regulation The Federal Reserve regulates private banks. The system was designed out of a compromise between the competing philosophies of privatization and government regulation. In 2006 Donald L. Kohn, vice chairman of the board of governors, summarized the history of this compromise:[37]

Agrarian and progressive interests, led by William Jennings Bryan, favored a central bank under public, rather than banker, control. But the vast majority of the nation’s bankers, concerned about government intervention in the banking business, opposed a central bank structure directed by political appointees. The legislation that Congress ultimately adopted in 1913 reflected a hard-fought battle to balance these two competing views and created the hybrid public-private, centralized-decentralized structure that we have today.

The balance between private interests and government can also be seen in the structure of the system. Private banks elect members of the board of directors at their regional Federal Reserve Bank while the members of the board of governors are selected by the President of the United States and confirmed by the Senate. (wiki)

[Carl_N_Brown]

Wikipedia "Federal Reserve" article:
footnote 37. "Speech – Kohn, The Evolving Role of the Federal Reserve Banks". Federalreserve.gov. November 3, 2006.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Google for "inflation 1800-present" and look for graphs. Inflation was small and volatile, rising for wars and falling afterwards, until after WW I, when the Fed got the itch to try and stop the ordinary post-war deflation, but Woodrow Wilson's stroke stymied their worst efforts and the 1919 depression, while starting as badly as 1929, was over in a year and a half. It's been galloping inflation since.

Yes, the Fed is soooo good at .... nothing except making things worse.

[SRG]

It’s been galloping inflation since.
Nope.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Yes.

[SRG]

https://fred.stlouisfed.org/series/CORESTICKM159SFRBATL
Now fuck off

[taqmcg]

Not sure what you are trying to say here. A record that only goes back to ~1970 doesn't offer much to evaluate the difference between the pre and post Fed periods. A quick google leading to officialdata.org (I have no particular reason to trust or distrust this site), suggests that net inflation for the ~130 years before the institution of the Fed was about 0. E.g., $2000 in 1800 was worth about the same in 1915, but is worth only about $112 dollars in 2010. So based on inflation data alone one may there's a scintilla of evidence that the Fed may have had a 'negative' effect.

However looking at the same graphs at officialdata.org there's a lot of volatility in the first century with periods of serious deflation balancing other inflationary periods (though here we might want to use log axes to really compare properly). So maybe the Fed has helped against major economic upsets, possibly at the cost of more long term inflation.

[SRG]

When there have been long periods since the 70s of relatively low inflation, that disproves the “galloping inflation” claim.

Furthermore, I was not the one who made the original claim – and no evidence has been provided in support of that claim. It’s quite possible that !@#$!%@$%#& didn’t actually know the true stats and was merely repeating what he’d read on the back of his cereal box.

Some inflation is anyway a good thing, so the total absence of inflation isn’t something you necessarily want to see. It’s indicative of industrial stagnation (see Japan from about 1990 onwards).

There is also the post hoc problem.

[Mr. Bumble]

"Some inflation is anyway a good thing, ...."
Why and how is inflation a good thing? Best economies seemed be be in periods of low inflation (cause and effect?).
For what it's worth a chart of inflation by year since 1800:

https://www.minneapolisfed.org/about-us/monetary-policy/inflation-calculator/consumer-price-index-1800-

[SRG]

Modest inflation is good because, among other things, it nudges companies to be more efficient, it nudges investors to put their money to work, and it is also a symptom of a growing economy. as I already noted - pointing out modern Japan as an instance where there was zero inflation, and even periods of deflation.

[Sarcastr0]

This some goldbug shit.

[SRG]

The advantage of goldbuggery (sic) is that it is the unfailing sign of an economics crank. The moment someone indicates that they're a gold bug or that we should return to the gold standard, we can tune out.

[Dan Schiavetta]

True story.

A couple of years ago I got two simultaneous anonymous packages in the mail. We never could figure out where they came from.

One was a book about how to invest in gold. The other was an order of (how should I put it?) “penis pills”.

[Dan Schiavetta]

Marbury v. Madison, 5 U.S. 137 (decided February 1, 1803): Marshall rules that the Court has no original jurisdiction to enforce a judicial appointment which Marshall (as Secretary of State) failed to get delivered. Marshall was also already Chief Justice at the time. He should have, of course, recused himself. This case is often cited as the precedent for judicial review, but that part of the opinion is dicta, as Marshall later pointed out (Cohens v. Virginia, 1821). But among the Founding Fathers judicial review already went without saying, as can be seen in the Washington Administration's 1793 consultation to the Court, raised as they all were in the British tradition (see "The British Origin of Judicial Review of Legislation", 93 Univ. Pa. L. Rev. 1 (1944))

Chisholm v. Georgia, 2 U.S. 419 (decided February 1, 1793): citizen of another state can sue a state in federal court under original jurisdiction (Georgia had bought supplies from South Carolina citizen but never paid him); this holding was a straightforward reading of Article III (it was a suit between a State and a citizen of another State; also of the Court's original jurisdiction, because a State was a party) but, as my Con Law professor put it, "the whole country went nuts" and it was quickly abrogated by the Eleventh Amendment

Murray v. The Schooner Charming Betsy, 6 U.S. 64 (decided February 1, 1804): Danish-flagged vessel owned by French citizen en route to Danish island should not have been seized under the Non-Intercourse Act of 1800 (this was the "Quasi-War" with France) (it also was not a war vessel, having only one musket, a few balls, and a few ounces of powder)

Scott v. London, 7 U.S. 324 (decided February 1, 1806): slave (named in the caption as "Negro London") not entitled to freedom even brought into state (Virginia) by one falsely claiming to be his owner and who allowed the 60 day certification period to expire, and it wasn't until 11 months later his real owner (from Maryland) came to get him

Rose v. Himely, 8 U.S. 241 (decided February 1, 1808): French privateer could not seize American vessel outside territorial waters (more than three leagues off Santo Domingo, at the time in rebellion against Napoleon) (quickly overruled by Hudson v. Guestier, 1810, for reasons not explained)

Waters-Price Oil Co. v. Deselms, 212 U.S. 159 (decided February 1, 1909): finally getting into the 20th century (though just barely), the Court affirms Territory of Oklahoma court verdict in favor of father whose children were killed in coal oil explosion; oil contained gasoline in violation of Territory statute; possible Equal Protection violation because statute punishes different people differently but that can be severed from the rest of the statute

[defaultdotxbe]

Lots of old cases today, interesting reads as always, thanks!

[Dilan Esper]

Important ones too- Chisolm and Marbury are arguably the two most important cases of the first 15 years of the Court's existence, and Charming Betsy would make the top 5 and is still cited all the time.

[Frank Drackman]

the "Non Intercourse Act"??? You're describing my life!!! No respect, no respect at all!

Frank "I was breast fed by my Grandmother!"

[Dilan Esper]

I should explain. The reason The Charming Betsy is such an important case is because it stands for the proposition that US statutes will be interpreted in a manner consistent with international law.

[Dan Schiavetta]

Thanks

I didn’t know that

[F.D. Wolf]

But among the Founding Fathers judicial review already went without saying, as can be seen in the Washington Administration’s 1793 consultation to the Court, raised as they all were in the British tradition (see “The British Origin of Judicial Review of Legislation”, 93 Univ. Pa. L. Rev. 1 (1944))

I found this a curious proposition, as I was under the impression that British courts could not nullify a law enacted by Parliament. I am certainly unaware of a British court ever actually purporting to overturn an act of Parliament. If British courts actually had such a power, one would think they would have used it at least once in the last 800 years.

I actually perused the cited law review article and found it unconvincing. It does not cite a single Act of Parliament being voided by a British court. The author instead bases his thesis on the claims by a few noted British jurists that they possessed such a power, chiefly on Lord Coke’s assertion in Dr. Bonham’s Case (1610) that, “When an Act of Parliament is against Common Right and Reason, or repugnant, or impossible to be performed, the Common Law will controll it, and adjudge such Act to be void.”

He cites the Virginia colonial case of Robin v. Hardaway, Jeff. 192 (Va. 1772), in which several Indians claimed they were wrongly being held as slaves. The defendants argued that an act of the colonial assembly had declared the Indians slaves. Counsel for the Indians cited Coke’s aforementioned dicta in his argument for their freedom, and the court ruled for the Indians.

Now, that was true, as far as it went, but is also misleading. Coke’s dictum was not counsel’s ONLY argument, nor is it the argument the court based its decision on. The court ruled that the Act had been repealed by subsequent acts. There are also citations to other colonial cases, but these involved colonial laws not invalidated for being contrary to some ephemeral “higher law”, but because they were repugnant to Acts of Parliament. There are also a couple of pages devoted to an 1894 Privy Council decision regarding a 1699 Connecticut statute. Again, this did not involve an Act of Parliament, but a colonial one, and, of course, the Founding Fathers could hardly have been influenced by decisions made 100+ years in the future.

Judicial review is not only not in the British tradition, but was completely anathema to it, which explains the violent, early reaction to it by some Americans, particularly those of a Jeffersonian bent.

[Dan Schiavetta]

I don’t see any evidence of a “violent reaction” to judicial review. Chisholm merely exposed a “flaw” in the Constitution which was quickly rectified. The Eleventh Amendment did not restrict judicial review, nor was any statute to that effect enacted.

The purpose of the Washington Administration’s 1793 request to the Court for guidance (formally sent through Jefferson, who was Secretary of State at the time) was to avoid having the Court strike down the actions they were contemplating. As it turned out, the Justices’ letter in response, while mentioning the principle of judicial review (it said the three branches were “checks on each other”), said that until there was actual enactment they couldn’t render an “advisory” opinion because there was no “case or controversy” yet.

[F.D. Wolf]

I didn't mean "violent" in the sense of actual, physical violence, but in the sense of strong, emotional reaction. Thomas Jefferson still was grousing about John Marshall and Marbury v. Madison in his letters more than 20 years after the decision.

I am not suggesting that judicial review is illegitimate, but do take issue with the cited law review's thesis that it was some firmly established tradition that the Founding Fathers just accepted as a matter of course. The Founders obviously continued many British traditions, but intentionally broke sharply with others.

Even the second generation did not fully accept the Supreme Court as the ultimate arbiter of the law. To bring it back around to Blackman's original post and the Second Bank of the United States, in his message to Congress accompanying his veto of the bill renewing the charter of the Bank, President Jackson wrote:

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

[Dan Schiavetta]

That was Andrew “the Supreme Court has made its decision; let them enforce it!” Jackson.

[Bob from Ohio]

Did it enforce the decision?

[Dan Schiavetta]

It's a misquote because (IIRC) the Court actually ruled in Jackson's favor. But as the speech quoted above illustrates, it expressed his general attitude.

[not guilty]

The Georgia conviction was reversed and the judgment of the state court was annuled, because the antecedent state statute conflicted with a treaty between the United States and the Cherokee Nation. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). The case was remanded to the state court.

Andrew Jackson’s bluster notwithstanding, enforcement of the Supreme Court’s judgment imposed no obligation upon the federal government.

[Dan Schiavetta]

thanks!

[Bob from Ohio]

"The case was remanded to the state court."

Which refused to release them.

Jackson did not [allegedly] say anything about an "obligation upon the federal government".

[Frank Drackman]

Actually it was "John Marshall has made his decision; now let him enforce it!"
Andy J always complained the "Fake News" misquoted him.

Frank "Andy J is worth 4 Honest Abes"

[Dilan Esper]

What is in the British tradition is the courts having the final say on what the law means. Parliament can pass something, but the courts control the issue of its interpretation.

And that's literally all you need to justify Marbury, because the Supremacy Clause does the rest-- in any conflict between the Constitution (as interpreted by a court) and a statute (as interpreted by a court), the Constitution prevails.

[F.D. Wolf]

And if the Parliament doesn't like a court decision, it can overturn it. Parliament has the final say on the meaning of a law, not the courts.

Legislative supremacy reigns in the UK; judicial supremacy reigns in the US. In Canada, there is a hybrid, where there Parliament can essentially suspend a Supreme Court decision for five years (five years being the maximum amount of time between parliamentary elections). If, after five years, Parliament has not taken any action, the Court's decision is again considered to be in force.

Again, I'm not saying judicial review is illegitimate; I am saying it was not a British tradition, and, in fact, was a dramatic break with British tradition.

(For the purposes of this post, I am speaking historically and ignoring recent developments, in which the UK Supreme Court, created in 2009 to replace the House of Lords as the highest judicial body, seems to be pushing the limits of its authority, possibly threatening this tradition of legislative supremacy. Of course, Parliament could abolish the Supreme Court if it so wished.)

[Dilan Esper]

I don't think that's right. Judges have a lot of power in the UK. They can't strike down a law because there's no written Constitution, but they certainly control legal interpretation.

Again, that's all you need. If Britain enacted a Constitution, the Supreme Court in the UK would quickly issue a Marbury like ruling unless the document prohibited judicial review, because it is in the nature of a Constitution that judges will interpret it. Marbury is not only right; it is obvious.

[SRG]

This is almost the first time I regret dozing through my tutorials on English Legal History (tutor JM Kaye, whose most notable publication appears to have been Medieval English Conveyancezzzzzzzz).

[The Margrave of Azilia]

Judicial review was always controversial and wasn’t specifically dealt with in the Constitution.

That being said, Marshall made a persuasive argument from first principles (not originalism). If Congress passes a statute abolishing the two-witness requirement for treason, must the Court follow that law, or follow the Constitution which *does* require two witnesses? One or the other must prevail, and the superior instrument should prevail over the inferior.

His argument is more persuasive than the counterarguments.

Of course, judicial *review* has sometimes been confused with judicial *supremacy* – not the same concept.

[Bob from Ohio]

2/1/1836: Second Bank of the United States killed by Andy Jackson

[Commenter_XY]

One of the first big spending Team D POTUS'. Federal government spending doubled under his watch.

[Bob from Ohio]

"judicial review already went without saying"

Like other imaginary things.

Please point to a House of Lords decision striking down an act of Parliament prior to 1776 [or ever]. The House of Lords was the highest court in England/UK.

[Dan Schiavetta]

Read the law review article cited, and look up the events of 1793, and come back here when you know what you’re talking about. Or to be more charitable, I think you’ve missed the point.

[Bob from Ohio]

I read it. A few isolated cases with dicta. Some lawyer arguments.

The highest court in England never asserted it could strike down an Act of Parliament. So how did our highest court inherit this power?

[Dan Schiavetta]

That’s enough, under British common law, to establish precedent. We have a developed a different mindset over the years because there is a supreme law (the Constitution) against which all other legislation must be evaluated. The Brits had no such supreme law. In fact on some fundamentals of British law there is no Law Lords decision, just dicta or lower courts. My point is: the principle of judicial review of legislation was firmly established, and taught in colonial law schools before the Revolution.

If you want to see really squishy (by your standards) law, venture into the law of wills. A basic rule, that lasted hundreds of years until it was abrogated in the 20th century, was set in “Shelley’s case” from 1581, and it was based only on a report from that case as to an argument of counsel and to this day no one knows how the court ruled.

[Bob from Ohio]

I hereby adopt the argument of F.D. Wolf above in response.

[F.D. Wolf]

Sorry, Bob, I copied your argument, though it was not visible to me as I was typing.

[LawTalkingGuy]

The U.S. Constitution's separation of powers system is pretty clearly consciously different than the complex British system that evolved over centuries. There is no doctrine of "Congressional Sovereignty" like there is with Parliament. The constitution consciously avoids instances of fusion of powers. You can obviously trace some traditions to the British system, like many Congressional privileges, or the common law/equity distinction. But I don't think the fact that English courts didn't have this power says a lot about the US system.

[SRG]

I don’t think the fact that English courts didn’t have this power says a lot about the US system.

Quite. Given a written constitution and a legislature bound by that constitution, the obvious question is, if the legislature pass a law that may violate the constitution, who decides that it does and that the law is hence void? In the US, this obviously lies within the judicial power under Art III and to some extent made explicit under Art VI

[apedad]

Nit-picking (and IANAL) but courts don't "void" laws, right?

They simply prohibit them from being enforced.

https://constitution.congress.gov/resources/unconstitutional-laws/

[SRG]

IANAL either. You're right.

And here: https://www.supremecourt.gov/opinions/URLs_Cited/OT2017/16-476/16-476-3.pdf

[Frank Drackman]

You know what else they had in 1793? Real men who would fight duels if someone told them to "Come back here when you know what you’re talking about." Easy to be an Internet tough guy when you don't have to back it up. Now go away, kid, you're bothering me!

Frank "Paper Airplanes at 15 feet"

[apedad]

On this day in history, Feb. 1, 1790, United States Supreme Court assembles for first time in NYC

https://www.foxnews.com/lifestyle/this-day-history-feb-1-1790-united-states-supreme-court-assembles-first-time-nyc

I suppose this would be a good entry on a blog that has, "Today in Supreme Court History. . . ."

[Mr. Bumble]

... and you've done so. If Blackman weren't so lazy there would be more than one event or case highlighted, like captcrisis does.

[Bob from Ohio]

Its just a "link to my book" post. That's it.

Always funny to see all the angst about it.

[Life of Brian]

Back-seat scholars, as it were.

[Rev. Arthur L. Kirkland]

As funny as finding all of the slovenly mistakes these two "scholars" publish? These guys are publishing the same mistakes for the fourth time these day, in some cases two or three years after the mistakes have been publicly identified.

The bright side is that this is one more reason strong, mainstream law schools should and likely will be reluctant to hire conservatives for faculty positions.

[Frank Drackman]

takes Josh hours to get his hair to look like he doesn't do anything with his hair.

[The Margrave of Azilia]

IIRC they met and adjourned without doing any business. There was none to do.

[Frank Drackman]

Can't believe I'm the only "Woke" Conspirator today, C'mon (Man!) it's the first day of "Black History Month" !(Of course, give the shortest, most depressing month of the year to the Blacks, another example of the Man keeping the Brutha's and Sista's down)
And Trivia time,
name the only Senator who voted against 2 Afro-Amurican Surpreme Nominees (Unsuccessfully). Coincidentally, the only one in recent memory who was an admitted Klan member,

Frank

[Frank Drackman]

Invading a peaceful neighboring country that doesn't want to be part of your country anymore tends to be expensive, see what's happening in You-Crane.