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

[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). 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” when they realized how far federal court power extended 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 though 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): 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

[apedad]

captcrisis - it's Waters-Pierce (not Price!).

[Dan Schiavetta]

thanks

[Dr. Ed 2]

Gasoline is a distillate -- how did they get coal oil IN it?

[Dr. Ed 2]

Actually it was gasoline in the kerosene tank -- 300 gallons of gasoline in 6,600 gallons of Kerosene should have mixed.

Anyway, something interesting: " two bottles was tested and analyzed by George L. Holter, an expert chemist, who was then and for thirteen years had been professor of chemistry and metallurgy in the Agricultural College at Stillwater, Oklahoma."

Higher education had a role back then that it doesn't now.

[Dilan Esper]

Interesting that the two most important opinions of the early Supreme Court (Chisolm and Marbury) were both February 1 opinions.

[Dilan Esper]

Separately, the importance of the Charming Betsy case is that it supplies the rule that statutes will be construed if possible to not be in derogation of customary international law (the "law of nations", in the parlance of 200 years ago). So if Congress wants to abrogate international law, it has to make a clear statement or pass an unambiguous statute that violates it. (That is relevant to current discussions about asylum legislation.)

[F.D. Wolf]

The owner of The Charming Betsy was not French, but Danish. (A major issue in the case was whether he was in fact Danish or American. Per the statute, if the owner of a vessel trading with the French was American, the vessel was subject to forfeiture.)

The Jane was a ship built in America and owned by an American. It sailed to St. Thomas, a Danish possession at the time (it would be purchased by the United States in 1917), where it was purchased by one Jared Shattuck. Shattuck had been born in Connecticut, but as a child had moved to St. Thomas, where he married, carried on a trade as a merchant marine, and took an oath of allegiance to the Danish crown. Shattuck renamed the ship The Charming Betsy.

A French privateer, recognizing the ship as one of American design, captured it. The ship was re-captured by the American frigate Constellation, commanded by one Capt. Murray. Noting the American design and learning that Shattuck was born in Connecticut, Murray concluded (not unreasonably) that the Danish-flagged ship was really American, trading with the French in violation of the Non-Intercourse Act.

At the forfeiture proceedings, the lower courts concluded that there was sufficient evidence that Shattuck had expatriated himself and become a Danish subject, so the ship was not subject to forfeiture. The Supreme Court, per Chief Justice Marshall, did not focus much on the citizenship question, but on respect for international law and the rights of neutrals.

The most important line in the case is, “an act of Congress ought never to be construed to violate the laws of nations if any other possible construction remains.” This has come to be known as “the Charming Betsy canon”, an important principle of international law, and the words have been echoed by courts throughout the world in regard to their own countries’ laws.

[Dan Schiavetta]

Thanks!

[F.D. Wolf]

The canon has been held to apply to international agreements as well as customary international law.

For example, Weinberger v. Rossi (1982), concerned a 1971 law the prohibited the Defense Department, at overseas facilities, from discriminating against American citizens or military dependents in hiring for civilian jobs except as provided by “treaty”. The practical purpose of the law was to give those jobs to soldiers’ wives. At the time the law was passed, the United States had a dozen executive agreements in place to give preference in those jobs to locals. (It had added four more in the interim.)

The question before the Court was whether that law abrogated the executive agreements. A unanimous Court, reversing the lower court, began by quoting the Charming Betsy canon, and said that it would stretch the meaning of “treaty” a bit to encompass those executive agreements.

[SRG2]

judicial review already went without saying

Yes. I have often had occasion to point out, when the argument arises, that at the time of the passage of the Constitution, "the judicial power" would have been understood to include review.

[Syd Henderson]

It had even appeared in a Supreme Court case, Hylton v. United States (1796), although that one is forgotten, probably since the law was upheld. Samuel Chase (yes, of impeachment fame) mentioned the possibility of a future case that would decide a law violated the Constitution and he was still around for Marbury v. Madison.

[Stephen Lathrop]

Today in VC history: The Thursday open thread disappeared.

[Mr. Bumble]

...again.

[SMP0328]

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” when they realized how far federal court power extended and it was quickly abrogated by the Eleventh Amendment

One of the reasons "the whole country went nuts" was that the Federalist Papers said that federal courts could not be used to force a State to be a defendant. This was a major concern as many feared the federal courts would be used to bankrupt the States and consolidate all political power in the federal government. Chisholm caused the people and the States to fear the country had suffered a bait-and-switch: a federal government of limited power would quickly become one of unlimited power. The 11th Amendment was adopted to repudiate Chisholm and alleviate that fear.

[Bob from Ohio]

"country had suffered a bait-and-switch"

Turns out they were right! The central government did become one of unlimited power.

[SMP0328]

What they were fearing was that the States would be abolished by being bankrupted via federal lawsuits. That hasn't happened.

[Bob from Ohio]

"consolidate all political power in the federal government"

Which in fact happened. States were bribed with "free" money instead for welfare, roads, etc. and are mainly just administartive units now.