Today in Supreme Court History: January 16, 1919

1/16/1919: The 18th Amendment is ratified.

Comments

[Dan Schiavetta]

Garrity v. New Jersey, 385 U.S. 493 (decided January 16, 1967): police officers being questioned in connection with investigation of traffic ticket fixing enjoyed Fifth Amendment privilege against self incrimination (they were told that if they didn’t answer a question they would be fired; therefore these were coerced confessions)

German Alliance Ins. Co. v. Hale, 219 U.S. 307 (decided January 16, 1911): no denial of Equal Protection by Alabama statute requiring any insurer belonging to a “tariff association” fixing rates of its members to pay to its insured an extra 25% on top of any insured loss; statute applied to any such insurer

National Cable & Telecommunications Ass’n v. Gulf Power Co., 534 U.S. 327 (decided January 16, 2002): Pole Attachment Act of 1978 (regulating rents for space on telephone poles) protects providers of cable TV, high-speed internet, and even wireless telecommunication

O’Brien v. Skinner, 414 U.S. 524 (decided January 16, 1974): striking down on Equal Protection grounds New York statute denying right of inmates awaiting trial or serving misdemeanor sentences (i.e., not felons, who can’t vote anyway) to register as absentee voters if jail is not in their county of residence

Zicherman v. Korean Air Lines Co., 516 U.S. 217 (decided January 16, 1996): relatives of passengers of plane shot down over Sea of Japan could not recover loss-of-society damages against airline; Court notes that Warsaw Convention refers issue to domestic law, stipulated to be American law, and Death on the High Seas Act, 46 U.S.C. §30302, allows only pecuniary damages

[John F. Carr]

The holding in the KAL case was overruled by statute in 2002:

In an action under this chapter, if the death resulted from a commercial aviation accident occurring on the high seas beyond 12 nautical miles from the shore of the United States, additional compensation is recoverable for nonpecuniary damages, but punitive damages are not recoverable.

42 USC 30307(b), 114 Stat. 131

[Dan Schiavetta]

Thanks!

[Dr. Ed 2]

I don't understand how US law applied in the first place.

If it was in Soviet territory (as they alleged) then Soviet law ought to have applied. Otherwise, on the high seas, a South Korean flagged ship is South Korean territory and that country's law should have applied.

One other thing -- we didn't used to have a 200 mile limit -- it was 3 mile state and then 9 more miles federal and that was all.

[John F. Carr]

Apparently KAL did not argue forcefully enough to apply Korean law and the trial court just assumed U.S. tort law applied. Quoting from the dissent in the Court of Appeals:

KAL's pre-trial motion to dismiss plaintiffs' punitive damage claims was premised exclusively on its argument that the Warsaw Convention precluded such an award. Near the end of the trial, the district court denied KAL's motion from the bench. Apparently for the first time in the proceedings, KAL's counsel then requested a choice of law analysis, but in a very vague and non-committal way.

https://casetext.com/case/in-re-korean-air-lines-dis-sep-1983

The facts before the court established that the plane was shot down over the Sea of Japan "in Soviet airspace". The 200 mile limit is the exclusive economic zone. An accident more than 12 miles from shore is on the "high seas".

[defaultdotxbe]

Would a plane being deliberately shot down be considered an "accident" under the statute?

[John F. Carr]

The jury found it was KAL's own fault that its airliner was shot down, and that this was willful rather than accidental misconduct so that the $75,000 limit on damages did not apply.

[Commenter_XY]

What did we learn from our 18th amendment experience?

Prohibition does not work. It did not work for alcohol, it does not work with recreational drugs, or with free speech either. That last part, not prohibiting free speech, seems especially relevant today.

[Martinned]

I'm no fan of banning things, but I'm also no fan of over-simple conclusions. Broadly speaking, banning things makes them less common, but doesn't prevent them altogether. Banning drugs makes drug use less common, but also puts the drug trade in the hands of criminals, and makes drug addiction more difficult to combat. So it's a trade-off. (As many policy questions are.)

[Krychek_2]

It does make the drug trade more dangerous, both for those involved in it and for innocent bystanders. Also, I've seen no evidence it makes drug use less common.

The lion's share of drug-related crime and violence would disappear if drugs were legal.

[Martinned]

You don't think that marijuana use has become more common since states have started decriminalising it?

[Krychek_2]

I haven't seen any numbers on it, but my intuitive hunch would be they haven't changed. Some people are predisposed to use pot, some people are not, and I doubt the ones that are care whether it's legal.

I also suspect that legalizing murder would not appreciably increase the murder rate (though I would be opposed to repealing laws against murder). Same rationale. The overwhelming majority of people are not inclined to commit murder and would not do so, legal or not. And the ones that do, don't care if it's legal.

[Dr. Ed 2]

Legalization has increased operating under the influence of it.
Insurance loss data confirms this.

[Noscitur a sociis]

Are you seriously arguing that criminal penalties have no deterrent effect? That seems contrary to common sense, the lived experience of anyone who has ever talked to a criminal, and statistics.

[defaultdotxbe]

My experience with people who smoke marijuana is that criminal penalties only deter admitting they smoke marijuana (if even that much) not the smoking itself.

[Noscitur a sociis]

Yes, I agree that criminal penalties haven't deterred the people who do smoke marijuana anyway from smoking it.

[Krychek_2]

I wouldn't say "no" deterrent effect, but probably not much. Nobody who commits a crime expects to be caught, and the prisons are full of people who were not deterred by the prospect of spending years of their lives locked up.

I hasten to add that there are other legitimate reasons to have a criminal justice system even if it had no deterrent value at all. But enough criminals lack good impulse control and don't think consequences through.

The death penalty is a good example of this. Back in the days when states had a working death penalty and executions took place a few weeks or months after the crime, if you compared homicide numbers from retentionist/abolitionist jurisdictions right next to each other you typically found they were comparable. Michigan, with no death penalty, had numbers comparable to Ohio, which did. If you want to argue for the DP go ahead, but there's zero evidence it actually deters people.

[Noscitur a sociis]

You seem to be making the same mistake as defaultdotxbe above: obviously, no criminal penalty will have a complete deterrent effect, and by definition the people who commit crimes are the ones who haven't been deterred. That said, if you've ever spoken to a criminal, you'll find that they do take steps to not get caught, including forgoing the commission of crimes in circumstances where it's extremely likely.

[Krychek_2]

Risk reduction and being deterred are not the same thing.

Just because I don’t speed when I see a police car doesn’t mean I don’t speed.

[Krychek_2]

And you might be surprised at how frequently "common sense" is contradicted by hard data.

[Noscitur a sociis]

I did mention statistics in my list, and the only specific hard data here is about how prohibition decreased alcohol consumption.

[markm23]

Did it reduce problem drinking, or only the total alcohol consumption? The stories I've heard from Prohibition days are full of drinking binges and drunk driving, but very little of people drinking sensibly. You make something a crime that people won't stop doing, and you made them criminals...

[Dr. Ed 2]

Krychek -- legal marijuana has actually exacerbated the problem of the untaxed & unregulated illegal kind.

See: https://www.themainewire.com/2024/01/at-rural-maine-marijuana-grow-cops-find-asian-passports-plane-tickets-from-china-and-stolen-electricity/#comment-80602

Grow it illegally, with stolen electricity and banned chemicals and then sell it for cash -- and this wasn't happening when marijuana was still illegal in Maine

[Dr. Ed 2]

I still don't see how US law applied -- if it was in Soviet airspace, Soviet law ought to have. As a ship on the high seas, Korean law ought to as it was (I believe) flagged South Korea.

[Magister]

(b) Having concluded that compensable harm is to be determined by domestic law, the next logical question would be that of which sovereign’s domestic law. In this case, the Court need not engage in this inquiry, because the parties have agreed that if the issue of compensable harm is unresolved by the Warsaw Convention, it is governed in the present case by the law of the United States.

I would not be surprised if both parties viewed Soviet law as Russian Roulette.

[Dan Schiavetta]

We’re suppposed to believe it does work with abortion.

[Noscitur a sociis]

Are you really suggesting that banning abortions doesn't reduce the number of abortions performed? If so, I've got good news for a lot of women in Texas!

[Dan Schiavetta]

You mean the ones who don’t appear in Texas statistics because they went out of state for the procedure?

Or the ones who weren’t reported because they went to Dr. Coathanger?

[Reallynotbob]

He probably means the ones that actually weren't performed on women having medical emergencies that just didn't seem to be enough of an emergency to the hospital's lawyers.

[Noscitur a sociis]

Are you really saying that you think there are exactly the same number of abortions performed on women in Texas as there were before these laws took effect? Because I'm pretty sure that's not the case (which, to be clear, is why I oppose them!).

[SMP0328]

What did we learn from our 18th amendment experience?

One thing we learned was not to put into the Constitution issues that could be dealt with by ordinary legislation. The reason the 18th Amendment was adopted was because its supporters thought it would permanently lock-in their victory regarding Prohibition. Which brings us to another lesson: the American People will rebel against what they see as an injustice, even if it means going against the Constitution.

[Dr. Ed 2]

Prohibition DID work....

The problem in seeing this is twofold -- first one has to take into account all of the earlier state and local temperance laws in the century before the 18th Amendment, you can't just look at alcohol consumption the year before it passed. And second is that you can't look at highly visible consumption amongst the urban elite and consider it reflective of the society as a whole -- no more than you can look at something like Club 54 in the 1980s as reflective of the entire society back then.

I'm not saying that Prohibition was a good idea, but it was working.
In fact, that's why it actually had to be repealed -- because it was starting to work. But the days of children buying buckets of beer in saloons and taking them home to their parents never returned.

[Krayt]

But the days of children buying buckets of beer in saloons and taking them home to their parents never returned.

Not everything is progress.

[Dr. Ed 2]

I'm thinking of the public health issues of a 19th Century saloon and cringing....

[Noscitur a sociis]

.

Prohibition does not work. It did not work for alcohol, it does not work with recreational drugs, or with free speech either.

I'm not sure what you mean by "work" in this context. Prohibition significantly reduced alcohol consumption in the United States (though not, of course, to zero); drug prohibition has significantly curtailed the availability of illegal drugs; and you certainly see less of the speech that is banned in countries that ban it.

[Krychek_2]

That's not true. Drugs used to be legal in the US, so we have addiction rates from both before and after they became illegal. After drugs were banned, addiction rates actually went up.

[Reallynotbob]

No, no, no, that's not it.

We learned that the only way an amendment can be enforced by the States is if it says the States get to enforce it. Duh.

Paging Prof. Blackman....

[huskerdru]

My knee-jerk reaction was to agree wholly with the proposition that Prohibition did not work (in reducing alcohol consumption). Apparently (once again) my instinct was wrong, or at least, nothing like that simple: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1470475/

[Martinned]

And just for our friend Kazinski:

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Question: Was alcohol legal in the United States before the passage of the Volstead Act?

[Syd Henderson]

I think yes since it was passed while the one year window was open. In fact, it should have been legal until January 16, 1920.

[Syd Henderson]

Although there was a Wartime Prohibition Act that took effect, oddly, on November 21, 1918. I don't know if it was ever enforced. The purpose was to conserve grain for the war effort. Maybe to feed the soldiers (and horses) who were waiting to come home.

[Dr. Ed 2]

Yes, it was legal -- and that's part of what led to Boston's Great Molasses Flood. The company was making alcohol from molasses and as much as they could so they filled a tank with molasses, it was a warm day and the molasses expanded and tank exploded.

[Noscitur a sociis]

The molasses flood happened before the 18th Amendment was ratified, you gigantic doofus.

[Commenter_XY]

The day before.

[Magister]

The tank was constructed in 1915, and had significant issues. The amendment seems aimed at intoxicating beverages, not industrial alcohol used for other purposes.

At the time, World War I was raging across Europe and munitions industries had an unquenchable thirst for the industrial alcohol needed to produce cordite—a smokeless gunpowder used in ammunition and artillery shells. USIA hurried construction of the tank to take advantage of lucrative war contracts.

[John F. Carr]

If the amendment were in force without any legislation to implement it, one could not be prosecuted for selling liquor but the liquor would still be contraband and a contract to sell liquor would be void as contrary to public policy.

A common American rule when a contract is against public policy is to leave the parties as they came to court, not to restore them to the status quo ante. If you paid for contraband and didn't get it, you're out of luck. If you turned over the contraband and didn't get paid, you're out of luck.

[SRG2]

A common American rule

carried over from earlier times: https://en.wikipedia.org/wiki/Everet_v_Williams