Today in Supreme Court History: December 24, 1798

12/24/1798: The Virginia Resolution, authored by James Madison, is published.

James Madison

Comments

[Dan Schiavetta]

Missouri Kansas & Texas Ry. Co. of Texas v. Ferris, 179 U.S. 602 (decided December 24, 1900): no federal question presented by Texas statute providing that refusal to answer at deposition is not an admission as to a corporate party (this was a civil case, wrongful death)

Gatewood v. North Carolina, 203 U.S. 531 (decided December 24, 1906): nominal stock exchange where no stocks were actually bought or sold (instead, members were awarded difference between sale price and market price) was actually a “bucket shop”, i.e., illegal betting (isn’t this perfectly legal now — it’s called the stock index futures market?)

Noyd v. Bond, 393 U.S. 1048 (decided December 24, 1968): Douglas springs Capt. Noyd from jail in time for Christmas Eve; Noyd was appealing his court-martial for protesting the Vietnam War by refusing to instruct an officer how to fly a military airplane (the Court ended up dismissing Noyd’s suit, holding that he had not exhausted his military appeals, 395 U.S. 683, 1969)

[SRG2]

Re: Gatewood
"isn’t this perfectly legal now — it’s called the stock index futures market?"

A minor point: it's not clear from the decision whether the market operated as something we'd recognise as a futures market, where positions are marked to market daily with variation margin being demanded as appropriate, or an alternative form of forward contract called a contract for difference (CFD) where. though initial margin may be required, no further payments are required or received until expiration date. As it is much easier to operate CFDs than futures - no recalculating and transferring money between parties daily - I suspect that regardless of what the statute or the court said, the contracts were CFDs not futures.

[Dan Schiavetta]

This is all Greek to me (Julius Caesar, I.ii.295), so you may be right. Thanks!

[bernard11]

I think some of it depends on who the counterparty is, or rather whether there is one other than the operators.

It also depends on how the "sale price" is set.

The decision is a little vague.

Gatewood, the operator,

"unlawfully and willfully did take and receive from E. T. Lea an order or contract to purchase on margin 100 bales of cotton for future delivery, to-wit, August delivery at 7 56.100 per pound, and that said Lea did deposit with said defendant at said time in said county the sum of $50.00 by way of margin fluctuations in said cotton, and that settlement between said parties for said cotton was agreed to be made upon the difference in value of said cotton at said date and the date of its delivery, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state."

[F.D. Wolf]

The two Noyd cases you cite did not address the underlying merits of his case, but the conditions of his confinement pending his appeals. His court-martial had sentenced him to one year at hard labor, and had ordered him confined at Fort Leavenworth pending his appeals. It was that latter order that was the subject of the petition to Justice Douglas. (Though, he had, in fact, never been sent to Fort Leavenworth, but had been "confined to quarters", essentially under house arrest.)

His one-year sentence had been set to expire on December 26, two days after Douglas granted his habeas petition. In other words, two days later, Noyd would have been freed from his "confinement", and the case would have been moot. The legal effect of Douglas' decision was to suspend the execution of his sentence with two days left on it, so it was not moot when the whole Court subsequently took it up (or so said the Court, at least).

[Dan Schiavetta]

Thanks

[Mr. Bumble]

Merry Christmas to all that celebrate the holiday and for everyone else a wish for "Peace on Earth to Men of Goodwill"!

[Nameless But Highly Opinionated]

These resolutions show that much of what lawyers would have us believe today about the law and the courts was not considered so by our founding generation.

Unlike today's constitution, which changes whenever the Court says it does, they held the constitution to have objective meaning - of which the people themselves were the sole source.

They further believed that, whatever a court's power over parties in cases wherein the court had jurisdiction, courts were not the sole or even primary interpreters of the constitution. It was the people themselves who had the right and duty to expound it. Many in government would have to interpret law to determine their own course of action, but it was the People Alone who had the right to actually settle constitutional meaning.

[NvEric]

A written constitution's purpose is for certainty and stability, when being sound and firmly grounded. Our constitution, a basic framework and guide is that, however, through the centuries has become, via federal laws, something quite another. Bloat has become dangerous by continually expanding the various "clauses" and more so to the sezure by, usurpation for, and Congressional abdication to, the executive.

Events in the past 20+ years mark dangerous furtherences from the blessings of liberty. Grave is the transition; abhorence being muted. Adherence to changes neither grants legitimacy nor legality; elections never confirm either.

Courts are to adjudicate, only blindly so. When not blind, courts dissolve their function and disavow their purpose.

[NvEric]

This date marks the first attempt in avoiding the down fall of our Republic. While many, including myself, note the greatness achieved by our band of hearty States over the centuries with Self-Government, today's path is unhealthy, being so for at least 110 years.

Despite frightening words uttered around the country as to the loss and demise of freedoms and such, a healthy chunk of Citizens can and will prevent our internment along this wrong path being taken.

The well-worn path is the wrong path, as its existence escapes into an abyss. Our path must and will remain bumpy, rocky, and new, for only true progress is to be had to where we must go.

[Mr. Bumble]

Interesting. I wonder why he was not allowed to resign his commission.
The linked piece makes no mention of the result of his appeal. Curious as to what that was.

[Dan Schiavetta]

Queen,

You’re welcome!

[SomeGuy 2]

It seems like they made pretty reasonable attempts to accommodate him. He didn't even have to go to Vietnam, just train somebody who would eventually go to Vietnam and as far as we know that person was willing (and since pilots are officers, presumably that person volunteered for this). I have a lot of sympathy for conscientious objectors of the era who were drafted, regardless of whether they opposed Vietnam in particular or war in general.

This guy is a much worse defendant and the guilty verdict was appropriate. When he chose to become an officer, the government invested a lot of time and money into him-- it costs a ton to train somebody to the level of proficiency the Air Force gave him. The moment he disagrees with a political decision, he wants out and refuses to even indirectly help? Obviously that's intolerable, you can't have a military where the officers collect a paycheck in peace and desert when there's actually a war.

[Dr. Ed 2]

As I understand it, if you resign your commission, they can then draft you.

[Mr. Bumble]

Even if that were true, given his age (born 1933) I doubt he would be subject to the draft.

[Dr. Ed 2]

In 1968, he would have been 35 -- draftable age if he had a needed skill, which he did.

Interesting thing is that an enlistee can't command an aircraft, you have to be an officer..

[Dr. Ed 2]

I'm not so sure.

"While serving in England, Noyd received a medal for landing a badly damaged F-100 Super Sabre fighter that was armed with a nuclear weapon."

He was Class of 1955 so Korea was over, although he started ROTC in 1951 when it wasn't. Even still, if he were SAC and the rest, I can see a distinction between that and Vietnam,