The Volokh Conspiracy
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Today in Supreme Court History: May 5, 1992
5/5/1992: The 27th Amendment is ratified. It was initially proposed in 1789.
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
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Town of Greece v. Galloway, 572 U.S. 565 (decided May 5, 2014): opening town board meetings with almost inevitably Christian prayer (rotating local ministers were almost all Christian) does not violate Establishment Clause; no attempt at proselytizing (overruling without admitting it County of Allegheny v. ACLU, 1989) (5 – 4 decision)
Kaupp v. Texas, 538 U.S. 626 (decided May 5, 2003): waking 17-year-old defendant from bed (after let in by father), handcuffing him, and walking him to police station was “arrest” such that confession obtained without Miranda warning was inadmissible (from the facts you can tell everyone knew each other and the cops knew this kid had done a bad thing, namely stabbing a disappeared 14-year-old friend)
Illinois ex rel. Madigan v. Telemarketing Assocs., 538 U.S. 600 (decided May 5, 2003): First Amendment does not bar prosecution of fundraisers lying about where the money goes
Smalis v. Pennsylvania, 476 U.S. 140 (decided May 5, 1986): “Causing a catastrophe” is apparently a criminal offense in Pennsylvania. Defendants allegedly allowed their building to burn, causing deaths of tenants. Their motion to dismiss at the close of prosecution’s case based on insufficient evidence was granted. The Court holds that this counts as an “acquittal” and appeal is barred by Double Jeopardy.
Moore v. Ogilvie, 394 U.S. 814 (decided May 5, 1969): striking down on Equal Protection grounds Illinois statute allowing third party on ballot only if 200 voters signed petition from each of the 102 counties (which gives much greater weight to voters from sparsely-populated counties; Hardin County, the least populous, currently has a voting population of about 2,000)
Kramer v. Caribbean Mills, Inc., 394 U.S. 823 (decided May 5, 1969): plaintiff, who had paid $1 for Panama corporation which had the real claim against a Haitian corporation (and then sold it back under similar arrangement), was “collusively” a party for the sake of invoking federal court jurisdiction even though the arrangement was legal under state law; case dismissed
Poland v. Arizona, 476 U.S. 147 (decided May 5, 1986): Double Jeopardy does not bar re-sentencing (appellate court found different reasons to support death penalty)
Yates v. United States, 356 U.S. 363 (decided May 5, 1958): Smith Act conviction reversed on appeal, but contempt for refusal to answer questions during trial survives; Court holds that the seven months spent in prison during the proceedings was already adequate punishment (this was Oleta Yates, a CPUSA official)
Carnegie Steel Co. v. Cambria Iron Co., 185 U.S. 403 (decided May 5, 1902): patent upheld for mixing molten steel from different furnaces for uniformity; not “anticipated” (i.e., obvious in light of then-current technology) by established process which did not hold molten steel in common container
Robers v. United States, 572 U.S. 639 (decided May 5, 2014): amount owed to bank under Mandatory Victims Restitution Act of 1996 (here, fraudulent mortgage application) reduced by amount realized by sale of collateral, not by the value of the collateral at the time of the fraud
Causing a catastrophe is currently a felony in Pennsylvania. It is only a misdemeanor in Utah unless done intentionally.
My guess is that there is an articulated definition of “catastrophe” that would constitute individual offenses elsewhere.
Yates had originally been sentenced to three years for contempt during trial, then resentenced to one year, then resentenced again to one year. Under modern law the sentence imposed by an angry judge would be limited to six months. Beyond six months a criminal defendant is entitled to a fair trial.
Thanks!
Town of Greece v. Galloway
The two things I have found about clergy over the years is that (a) they are (mostly) decent people who (b) want to convince others that their religion isn’t crazy, just different.
Hence my guess is that these prayers will be pretty non-denominational, not along the lines of “everyone else will burn in hell” stuff. Remember it’s “church of your choice — but please chose mine.” And the local Rabbi likely do something of the same.
My rule as to this issue is: If Jews don’t object, it’s o.k.
I don’t disagree that most clergy are decent people and there is such a thing as a non-sectarian prayer, but that’s not the point. The point is that everyone has to take their time to acknowledge religion.
If instead of prayer these meetings were being opened with gay activists giving a two minute speech about gay rights, or abortion rights activists giving a two minute speech in favor of abortion, nobody would have any difficulty at all seeing why it’s objectionable: You’re entitled to your opinion, you’re not entitled to make me listen to it as a condition of transacting official business. Likewise, nobody should have to listen to a religious spiel as a condition of transacting official business.
And the real underlying problem here is religion being treated as a special category rather than just another viewpoint.
The conservatives on the bench will insist – not without merit – that religion’s being treated as a special category is part of the US’s history and tradition. But then, there are other things that are as well which we don’t practice anymore…
I am generally an optimist (less by nature than by policy) and I think there’s evidence that over the centuries, over millennia, human society slowly but demonstrably evolves, matures, improves, and ultimately, advances.
Such progress is not smooth; it happens in fits and starts with considerable backsliding in individual liberties and freedoms, one example being own current several decade backsliding in separation of church and state (through government enforcement of specific religious requirements and prohibitions on individuals who do not agree to be bound by a such beliefs).
This was triggered by political movements roughly from the period of 1950’s McCarthyism (one marker was the 1954 addition of Under God to the Pledge of Allegiance solely to let Congressmen bellow We’re not like those Godless Communists!), through National Conservatism’s longing for theocracy today.
But the gradual, continuing, global disentanglement of religion from government over the last 300+ years is evidence of that long slow societal progress.
Purple Martin, I would generally agree with that, with one caveat: Humanity now has the capacity to destroy not only itself but the entire planet, and will this long slow societal progress come fast enough to prevent that from happening?
And that’s what worries me. In another 10,000 years or so, we may have evolved into societies that make rational decisions and treat each other well. But we may not have 10,000 years. One multi-nation nuclear war, one tipping point reached on climate change, one environmental collapse, and it simply won’t matter.
I’m at an age at which I, personally, am not likely to live to see any such catastrophe. I do worry for the next generation.
Count me unconvinced that progress is inevitable.
Anyway, religion isn’t just another POV. As an atheist I might wish it were, but I’m stuck with the Constitution we have. And the countrymen I have.
“200 voters signed petition from each of the 102 counties”
Hardin County currently has a population of 2,949. Back in the 1960 census, it had 5,879 which was down 21.9% from the 7,530 it had in 1950. But I do see the problem.
The flip side of this is currently happening in Maine, which has 16 counties, but signatures are only collected in the two most populous, and then only the coastal portions of each. One proposal I’ve heard is to require signatures from both (of two) Congressional Districts. That I think would pass muster because there are an equal number of people in both districts, even if the 2nd is 4/5 of the state.
Was the latter a Louisiana case?
Any good recipes?
Yates was the case about whether Sarbanes-Oxley governed the throwing of contraband fish overboard. Justice Kagan, in dissent, cited One Fish, Two Fish, Red Fish, Blue Fish.
Shortly after, the courts rendered the amendment moot by permitting Congress to circumvent requirements by putting their pay raises on automatic, sparing themselves the need to ever vote again on a pay raise.
Boehner v. Anderson
Although since 2009, Congress has voted NOT to increase their salaries.
“Members of Congress last received a pay adjustment in January 2009. At that time, their salary was increased 2.8%, to $174,000.
Subsequent adjustments were denied by P.L. 111-8 (enacted March 11, 2009), P.L. 111-165 (May 14, 2010), P.L. 111-322 (December 22, 2010), P.L. 112-175 (September 28, 2012), P.L. 112-240 (January 2, 2013), P.L. 113-46 (October 17, 2013), P.L. 113-235 (December 16, 2014), P.L. 114-113 (December 18, 2015), P.L. 114-254(December 10, 2016), P.L. 115-141 (March 23, 2018), P.L. 115-244 (September 21, 2018), P.L. 116-94 (December 20, 2019), P.L. 116-260 (December 27, 2020), P.L. 117-103 (March 15, 2022), and P.L. 117-328 (December 29, 2022).
The Member pay freeze has generally been included in a larger bill—usually an appropriations bill—with no separate votes held on that provision.”
https://crsreports.congress.gov/product/pdf/RS/97-1011
It would be the height of arrogance to give themselves a COLA now to compensate for the inflation they caused.
It’s kind of pathological, though: Living in the DC area while maintaining a home in their district is extremely expensive: The more they let Congressional pay shrink in real dollars, the more it becomes impossible for the non-wealthy to be members of Congress, and the more pressure to cash in on the position.
A large fraction of new members are actually reduced to sleeping in their offices.
Maybe they should add a Congressional bunk house to the Capitol basement?
A Congressional Bunkhouse is not a bad idea — it was the Republicans who wanted to sleep in their offices and (and shower in the Congressional gym and the Dem leadership who blocked it.
But they already have a gym, dining room, barber shop, pharmacy, (they *had* a bank, remember that) — and 150 years ago, there were rooming houses for Congressmen.
But if you’re a Republican, don’t you want only wealthy people to be able to run for Congress?
NO! Those are called RINOs and we don’t want them.
The populist Republicans, the TEA Party and now MAGA are working class. They’re not poor, but they’re also not wealthy.
Rep. Gaetz, son and grandson of prominent politicians, a lawyer, and a graduate of William and Mary, is working class? About as working class as Pres. Trump.
You go into battle with the allies you have, and not the ones you’d like to have.
‘The populist Republicans, the TEA Party and now MAGA are working class.’
They’re mostly middle class business owners without a college education.
Only in your fevered imagination.
Some are even better off than that, yes.
The Amendment speaks of “variations” in pay, which would, obviously, encompass pay reductions as well as pay increases. One might imagine a mid-term election in which the majority party is swept out of power and, during a lame-duck session, dramatically reduces the pay for the incoming Congress. This would clearly be prohibited by the Amendment.
One doesn’t need to imagine a lame-duck governor signing significant reductions in the power of the governor’s office after the election of a governor of a different party.
That’s been a recent tactic of Republicans, with a Democratic governor incoming. It’s a new tactic and I’m not aware of Democrats using it, at least not yet.
That strikes me as a lousy decision.
Suppose Congress passed a law saying that starting after the next election members will receive a 50% raise every year, but that amount can be reduced by the new Congress.
It seems like that would pass muster under Boehner v. Anderson.
Can’t be right.
The Supreme court typically only enforces the Constitution against states; Federal laws being struck down as unconstitutional is once in a blue moon.
Getting to nominate and confirm the judge in your own case isn’t much superior to getting to BE the judge in your own case.
Kaupp is interesting not for the SC decision but for the perverse decisions of the lower courts, that, as far as one can tell from the SC decision, they must have known full well that Kaupp had been arrested at the outset, but clearly did not want to find such, so that the confession would be admissible.
I agree
Time to repeal the 14th so that no one thinks vermin like Neely’s life is worth anything.
https://thehill.com/homenews/state-watch/3989321-the-memo-tragic-subway-death-sparks-firestorm-among-new-york-democrats/
EDIT: Never mind, thought better of going off topic in this thread
The 14th Amendment doesn’t preclude self defense.
I’m not seeing how the 14th amendment is even relevant to this.
Correct. But without the 14th Amendment, legislatures could pass sensible laws setting one standard for blacks and one for others, such that the laws permitting use of force against blacks would be much laxer.
It’s “Black” and “appeared white”, according to The Hill.
Killing the mentally ill has been practiced in times past, but not generally in civilised society.
Fortunately for the poster now calling himself hoppy!
When the mentally ill are threatening to hurt everybody on the train, demanding money, saying they’re not taking no for an answer, and don’t care if they die or go to jail for life? This is textbook threatening imminent bodily harm and based on the facts we have now self-defense was entirely justified, it just turned out to be fatal for the guy issuing death threats. He doesn’t magically get a free pass to go around threatening massacres because of a purported mental illness.
Being politically committed to not giving a shit about people dying of covid or about mass shootings is really having a coarsening effect on some people.
I think the issue here is not self defense but excessive force. There were other ways to subdue him without killing him.
That’s not the rhetoric by our elected officials, they’re calling protecting a subway car full of people murder and lynching. To the extent it’s just a question of excessive force, discretion is part of the prosecutor’s duty. Even assuming it was excessive force– and I’m not sure there was any other way to stop this person– trying to throw a Good Samaritan in prison because of imperfect defense of others is a really good way to get a city of bystanders, terrified to help their fellow citizens. I’m glad I escaped New York two decades ago.
Good samaritan is the wrong term for somone who’s idea of helping others is to kill them.
If the initial reporting is right, then a predator threatened a robbery and issued death threats (I’m not taking no for an answer, I’ll hurt anyone on this train, I don’t care if I go to jail for life, etc.). A marine protected a subway car full of passengers from the predator. That’s a good samaritan even if it has negative results for the predator. If you’re troubled by this, well I am too, but it’s entirely the predator’s fault. He had agency and he’s the one who chose to threaten robbery and murder. That’s on him, the defense of others that naturally flows from his choice to make threats is his own fault.
Without RISKING killing him? You know this for a fact? Tell us more.
On the contrary, it’s reasonably common in civilized societies to kill the violent mentally ill in self-defense. Do you have any counterexamples?
No, it’s reasonable to provide the severley mentally ill with the healthcare they need to ensure they’re not a threat to themselves or others. Hitler liked to murder the severely mentally ill, maybe you’re thinking of him.
The (relatively innocuous) 27th Amendment does not bother me, but the delay in its ratification (202 years after being submitted by Congress) does. What if opinion in some of the States had changed to opposition in the last 200 years?
I would favor a Constitutional Amendment to establish a “current consensus” theory:
“To become law, a proposed amendment must be ratified by the requisite three-quarters of the States within seven years of when it is submitted to them by Congress. Until three-quarters of the States ratify, a State may rescind its ratification by the same means it used to ratify.”
(But I understand most current proposals favor an easier amendment process.)
The proposed Equal Rights Amendment, outlawing discrimination by sex, is another zombie in the news. Unlike the 27th Amendment, it contained a seven-year ratification deadline, but proponents point out that the deadline is not in the text of the Amendment itself. Since ERA was approved by Congress in 1972, SCotUS has wielded the 14th Amendment like a meataxe against the discriminatory laws that prompted it. Remaining discriminatory laws mostly favor women, eg exemption from the draft, and preference for mothers in the custody of young children.
Nevertheless, many feminists are now loudly demanding its revival. I suspect abortion politics are involved: if it were ratified, it might be a block on abortion bans as discrimination against women. But abortion banners might (before the right court) get away with arguing that they also ban abortions for men.
I’d agree with your amendment, maybe with a tweak:
“Any proposed amendment ratified by the requisite three-quarters of the States, with identical language, within the same seven years, regardless of origin, shall become law without further action required. Until three-quarters of the States ratify, a State may rescind its ratification by the same means it used to ratify.”
The difficulty with Article V amendment is NOT at the ratification end. It’s at the origination end. Congress stopped originating amendments decades ago; Their last serious attempt at one was the DC statehood amendment back in 1978. After that they just gave up on the idea.
And even the convention approach was foolishly routed through Congress; The states petition Congress for a convention, and Congress can prevent a convention by just ignoring the states.
So just forget requiring formal origination, if enough states ratify the same language within a 7 year window, wham, it’s in the Constitution.
Good correction. My original approach totally overlooked the Convention route for originating an amendment, and did not address problems with obstruction in Congress.
And even the convention approach was foolishly routed through Congress; The states petition Congress for a convention, and Congress can prevent a convention by just ignoring the states.
What would be the consequences if Congress blew off such a petition? I think, at least politically, Congress would have to create an Article V Convention if two-thirds of the States petitioned for it. Also, notice that Article V gives Congress the choice as to whether a proposed amendment is submitted to State legislatures or State conventions even if the proposal comes from an Article V Convention.
The Constitution replaced the Articles of Perpetual Union because the Convention ignored the limits on its authorized authority. No reason the same process can’t work again, cutting Congress out entirely.