Today in Supreme Court History: March 10, 1919

3/10/1919: Debs v. United States decided.

Comments

[Dan Schiavetta]

Gregory v. City of Chicago, 394 U.S. 111 (decided March 10, 1969): police cannot order a demonstration dispersed if it's the onlookers who are getting violent, not the demonstrators (this was comedian and activist Dick Gregory, fondly remembered at least by me, leading a police-escorted antisegregation demonstration from City Hall to the mayor's residence, the not-so-fondly remembered Richard J. Daley)

Frohwerk v. United States, 249 U.S. 204 (decided March 10, 1919): upholding conviction for conspiracy to obstruct military recruiting even though no specific acts were yet planned (this seems to violate the rule that not only must there be a plan there must be some act "in furtherance of" the conspiracy, but this was World War I; unanimous opinion by Holmes)

Debs v. United States, 249 U.S. 211 (decided March 10, 1919): Another Holmes affirmance of an Espionage Act conviction based on allegation of obstruction recruiting. Eugene V. Debs gave a speech saying nice things about socialist comrades who had been convicted for aiding others in evading the draft. Debs was sentenced to ten years for this; due to ill health his sentence was commuted by Harding, who received him at the White House with grace and affection, possibly because Wilson had been so mean in denying commutation.

Shelby v. Guy, 24 U.S. 361 (decided March 10, 1826): If you seize land, publicly possess it, and work it, after a certain period of time (here, five years), you win title by adverse possession. (Ha -- fooled you! This case holds that if you seize slaves, publicly own them and work them for five years, they become yours. At least if you're white.) (P.S. This opinion illustrates the convention that slaves' children were not called their children; the term used was "their increase".)

The Alerta, 13 U.S. 359 (decided March 10, 1815): A dispute over a ship and its 170 slaves jouneying from Africa and taken as a prize of war in New Orleans. The details are not important, except to note that all 170 slaves survived the journey. Slaves were in fact tolerably well cared for, about as much as animals are, because they were valuable. The notorious 18-inch lower decks were just for the beginning of the journey; once Africa was out of sight and they couldn't jump overboard and swim back, they were let up on deck for sun and air. The attractive females were treated best, in exchange for their "goods". This and many other illuminating facts are in "The Slave Trade" by Hugh Thomas.

Marvin M. Brand Revocable Trust v. United States, 572 U.S. 93 (decided March 10, 2014): federal land grants to railroads in 1875 were for use as railways and created only an easement; once line was abandoned the right-of-way became public property again for sale to private parties; Robert's opinion is a well-written history of the rise and fall of federal grants to railroads

Cook County, Ill. v. United States ex rel. Chandler, 538 U.S. 119 (decided March 10, 2003): qui tam ("private attorney general") actions can be brought against municipalities because they are "persons" under the False Claims Act (here, scientist sued county hospital for receiving federal grants with false applications) (states can't be sued qui tam, see Vermont Agency of Natural Resources v. United States ex rel. Stevens, 2000)

Moran v. Burbine, 475 U.S. 412 (decided March 10, 1986): Miranda waiver effective even though police didn't tell defendant his sister had gotten him an attorney who was trying to reach him

Citizen Publishing Co. v. United States, 394 U.S. 131 (decided March 10, 1969): competing newspapers which combined, pooled profits and ended competition in the local market violated Sherman Act; "failing business" defense not applicable because the lesser-profitable paper was not in danger of going under (the opinion reveals that jointly their profits exploded; this to me means a lot more people were reading newspapers post-Sherman Act violation than before)

Connolly v. Union Sewer Pipe Co., 184 U.S. 540 (decided March 10, 1902): Illinois statute exempting agricultural and livestock businesses from antitrust was unconstitutional (overruled by Tigner v. Texas, 1940)

[Commenter_XY]

How come you can sue a municipality, but not a state, qui tam? Why are not both entities liable under the False Claims Act?

That just seems so.....convenient for the states.

[Dan Schiavetta]

States are sovereigns but municipalities are corporations, and corporations are “persons” who can be sued. Or so the logic went.

[The Margrave of Azilia]

I’d say that the 11th Amendment awards states the quasi-sovereign prerogative of not being sued by outsiders (citizens of other states, citizens/subjects of foreign states).

Here is a binding piece of positive law, but since it’s in derogation of the principle that there should be a remedy for every wrong – and a jurisdictional clause in Art. III which extends federal jurisdiction to cases where a state is a party – then the 11A exception should not be allowed to bleed over into other situations, like a state getting sued by its own citizens (specifically for violation of the federal constitution and laws).

Obviously, the Supreme Court thinks otherwise, and uses “Eleventh Amendment” as a rule of sovereign immunity even against suits by a state’s own citizens.

[John F. Carr]

Shelby v. Guy is a trip though archaic language and procedure. Special demurrers to replications and all that.

Some points on appeal were

As, first, that the counts in the declaration are repugnant, the one being essentially a count in trover, the other in detinue; and,
Secondly, that the replication involves a departure, inasmuch as the writ claims the whole property, and the replication shows him to be entitled to no more than a moiety.
That the replication is more characterized by prolixity, than by science, the Court will readily admit; but that it is essentially vicious, cannot be maintained.

Some other lines:

The points argued have been very numerous; but if the plaintiff has tripped in pleading, by a vicious replication, the questions on the merits are put out of the case. The points arising on the demurrer, therefore, must first be considered.

... a tortious letention may well be of that which another has no interest in, but to the temporary use or custody.

In substance, when and where the alleged transfer of slaves happened the statute of frauds applied to slaves. An undocumented gift was no gift at all. But there was a statute of limitations on recovery of personal property. "A plaintiff, in Virginia, may recover in detinue upon five years peaceable possession of a slave acquired without force or fraud."

[Dan Schiavetta]

"Tortious letension" sounds painful! Glad I wasn't around in those days!

[ReaderY]

Especially if you were black.

[John F. Carr]

Sadly, "letention" is not an act of abuse outlawed by the 13th Amendment. It is a scan error for "retention", confirmed by viewing the 19th century printed version. The error shows up in several online versions. One person scanned and OCRed the decision and everybody else stole that copy because it is not subject to copyright, not even the page numbers.

[John F. Carr]

Some more obscure words or constructions. Pass them on to Bruce Selya.

"plea of non detinet"

"The exceptions ... are consubstantial"

"upon their going to house-keeping"

"this must have put the party to his action to reinstate himself in the enjoyment of the property."

[John F. Carr]

The global war on terror brought us a reverse of Moran v. Burbine. The district court ordered the government to inform an American being held overseas that the ACLU was willing to offer him legal help. The case on appeal was Doe v. Mattis, 928 F.3d 1 (D.C. Cir. 2018).

[Frank Drackman]

Actually Richard Dailey had way more funny one-liners than Dick Gregory, lets see, some of "Hiz Honor's" Mike Drop moments

"We as Democrats have no apologies to make to anyone"
"The police are not here to create disorder, they're here to preserve disorder."
"We are proud to have with us the poet lariat of Chicago."
"We shall reach greater and greater platitudes of achievment."
"They have vilified me, they have crucified me; yes, they have even criticized me.

Frank

[Frank Drackman]

I spoke too fast, Gregory's got some good stuff, too bad he couldn't say it today or he'd get "Dilbert-ed"

We tried to integrate a restaurant, and they said, `We don't serve colored folk here,' and I said, `Well, I don't eat colored folk nowhere. Bring me some pork chops.'"
"I never believed in Santa Claus because I knew no white dude would come into my neighborhood after dark."
“Segregation is not all bad. Have you ever heard of a collision where the people in the back of the bus got hurt?”
“I sat in at a lunch counter for nine months. When they finally integrated, they didn’t have what I wanted.”
“I've been reading so much about cigarettes and cancer, I quit reading.”

Frank

[CJColucci]

Why do you think Gregory couldn't tell these jokes today?

[Dan Schiavetta]

A rare thanks to Frank. Those are all good jokes. I miss him!

[Dr. Ed 2]

"Citizen Publishing Co. v. United States, 394 U.S. 131 (decided March 10, 1969): competing newspapers which combined, pooled profits and ended competition in the local market violated Sherman Act; “failing business” defense not applicable because the lesser-profitable paper was not in danger of going under (the opinion reveals that jointly their profits exploded; this to me means a lot more people were reading newspapers post-Sherman Act violation than before)"

Even if readership reduced, if you cut your expenses nearly in half, your profits will explode. You only need half the reporters, half the typesetters (manual layout back then) and while you will need more ink, paper and electricity for the larger press run, otherwise you are getting two papers for the price of one.

And that's presuming you don't exploit your monopoly to raise advertising rates.

[Dr. Ed 2]

"...The details are not important, except to note that all 170 slaves survived the journey. Slaves were in fact tolerably well cared for, about as much as animals are, because they were valuable."

This was after captains were paid for the number of slaves *delivered* and not the number of slaves taken aboard in Africa. That change was suggested by a minister who sought to improve conditions on these ships.

And this is why I argue that sharecropping was worse than slavery.

[Dan Schiavetta]

I’d like the cite for that

[Dr. Ed 2]

Here's one, not the one I was looking for:
https://en.wikipedia.org/wiki/Sir_William_Dolben,_3rd_Baronet

[Dan Schiavetta]

Thanks.

It seems odd that captains would be paid for the slaves they bought in Africa even though a number of them would die on the voyage due to the captain's negligence/greed. Or if they were paid directly by the Africans, financially stupid of them to take crummy care of them so that they were either dead or so sick as to be unsellable when they got to Rhode Island, until the law forced them to improve care.

[Dr. Ed 2]

Service on a slave ship was unpleasant -- 20% of the crew often died from disease, and they had to sleep on the open deck because every space below was occupied by slaves. Hence only the dregs would want to be the crew, usually convicted felons.

Hence the Captain often wasn't the owner of the ship -- he was taking someone else's ship to Africa to purchase a set number of slaves, for which he would be paid an already determined amount of money. Hence while the *owner* lost potential income with each dead slave tossed overboard, the *Captain* didn't.

And the Captain actually *gained* money with every dead crewman tossed overboard because he wouldn't have to pay him upon arrival and hence he got that man's wages.

[Dan Schiavetta]

ah, good times . . . thanks

[Frank Drackman]

Man, you're really up on all this Slave business, previous life??

[John F. Carr]

I worked for a company where the salesmen got their commissions on signing the contract or maybe on delivering a package, but before acceptance. That did not go well. The salesman promised the world and walked away. We product developers had to deal with the fallout.

[Sarcastr0]

this is why I argue that sharecropping was worse than slavery.

This is a very stupid atrocity Olympiad you're pushing.

Is it worse to be economically enslaved or formally so? Who the fuck cares?

[Krayt]

(P.S. This opinion illustrates the convention that slaves’ children were not called their children; the term used was “their increase”.)

So there's precedence for not calling children children, as dehumanizing rhetorical device, if you want to do something rotten to them.

[Magister]

It's about dehumanizing the parents, though. And "domestic supply of infants" isn't really much better.

[Krayt]

Gregory v. City of Chicago, 394 U.S. 111 (decided March 10, 1969): police cannot order a demonstration dispersed if it’s the onlookers who are getting violent, not the demonstrators (this was comedian and activist Dick Gregory, fondly remembered at least by me, leading a police-escorted antisegregation demonstration from City Hall to the mayor’s residence, the not-so-fondly remembered Richard J. Daley)

The left then: You can't shut down speech because someone else is violent! Government should protect and not let the violence win!

The left now: Be violent and shut down that guy's speech! Violence win ok!

[F.D. Wolf]

Debs' conviction came in the midst of the First Red Scare (1917-1920). Many events, from the Bolshevik Revolution in Russia to a spate of bombings, strikes, and riots fed the anti-Communist hysteria. The federal and state governments responded with legislation aimed at "sedition" that targeted speech. Hundreds were arrested and/or deported. In 1919, the labor movement's annual May Day (May 1) parades, usually peaceful, erupted in violence throughout the country. Attorney General A. Mitchell Palmer predicted a socialist attempt to overthrow the government would occur on May Day 1920. After the day passed without incident, the hysteria dissipated relatively quickly.

Debs began serving his ten-year prison sentence on April 13, 1919. Likely the most prominent (and popular) federal prisoner at the time, left-wing and labor groups campaigned for his release. Even right-wingers vehemently opposed to socialism generally viewed Debs as a harmless, affable fool who did not deserve his harsh sentence. In January 1921, Attorney General Palmer recommended to the outgoing President Wilson that Debs be released, but Wilson refused, calling Debs “a traitor to his country, who will never be pardoned during my administration.” Informed of Wilson’s decision, Debs responded in a statement published by the New York Times, “I understand perfectly the feelings of Wilson. When he reviews what he has done, when he realizes the suffering he has brought about, then he is being punished. It is he, not I, who needs a pardon. If I had it in my power, I would give him the pardon which would set him free.”

The movement for Deb’s clemency picked up steam as new President Warren Harding, who had in his campaign occasionally flirted with the idea of clemency for political prisoners incarcerated during the Wilson Administration, took office on March 4, 1921. On March 24, Debs was actually allowed to travel unescorted by train from federal prison in Atlanta to Washington, D.C. where he met with Attorney General Harry M. Daugherty and other officials. Years later, Daugherty would recall that Debs “spent a large part of the day in my office, and I never met a man I liked better.”

Finally, on December 23, 1921, Harding commuted Debs’ sentence to time served, effective Christmas Day. Debs and Harding would meet privately at the White House on December 26. One of the reasons Harding gave for the clemency was Debs’ ailing health; Debs would pass away on October 20, 1926, a little more than three years after President Harding himself had died in office of a heart attack.

Bonus Debs trivia: Debs was the Socialist Party's candidate for president in 1904, 1908, 1912, and 1920, the last campaign being conducted from his prison cell. (He had promised to pardon himself if he won.) He finished third, third, fourth, and third in the popular vote respectively. His best result percentagewise (6%) came in the 1912 election in which Woodrow Wilson won ahead of former president Theodore Roosevelt and incumbent president William Howard Taft. Debs' highest percentage won in a state that year was 16.47% in Nevada, where he actually garnered more votes than Taft. In fact, he finished ahead of Taft in a handful of states. Debs finished second in Florida, ahead of both Roosevelt and Taft. (Admittedly, a distant second, as Wilson won 69.5% to Debs' 9.5%).

[Dan Schiavetta]

Thanks!

[The Margrave of Azilia]

Indeed interesting, but I would suggest that his conviction was part of the WWI "anything that questions the war" scare, not the postwar Red Scare.

[David Nieporent]

Um, you think there's a distinction?