Today in Supreme Court History: May 3, 1802

5/3/1802: Washington D.C. incorporated as the capital of the United States. Article I, Section 8 empowers Congress to "To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States."

Comments

[Dan Schiavetta]

Shelley v. Kraemer, 334 U.S. 1 (decided May 3, 1948): the first case invalidating “restrictive covenants” prohibiting black people from buying houses in white neighborhoods; though covenant was between private parties, judicial enforcement of covenant was “state action” implicating Fourteenth Amendment equal protection clause (there’s something odd about this argument -- it seems to swallow up everything -- any agreement at all between private parties turns into “state action” once anyone takes it to court)

Lee v. Lee, 33 U.S. 44 (decided May 3, 1834): A freedom suit brought by slaves who had formerly lived in Virginia with their owner, appealing from a verdict in his favor. When Maryland and Virginia ceded parts of their land to the new D.C. in 1801, Congress provided that all laws of Maryland would remain in force. This would have included a 1796 law freeing any slave brought into the state. But in D.C. as a whole, slavery was legal. The part of Maryland ceded included “Washington County”; the part of Virginia ceded was “Alexandria County” (more or less modern-day Arlington County, later given back to Virginia). Here, the owner moved to Washington County, but assigned his slaves to owners in Alexandria county, and after a year brought them to him in Washington County. Was this an attempt to circumvent the 1796 law? The Court here holds that this question should have been heard by the jury and sends back for a new trial. Unknown what happened later. (With slaves being the appellants, the Court also refuses to entertain whether their market value was less or more than $1,000, the jurisdictional limit; “the value of their freedom is not susceptible of a pecuniary valuation”, although oddly mentions that it would have been relevant if it was the owner appealing.)

Stinson v. United States, 508 U.S. 36 (decided May 3, 1993): courts are bound by the commentaries of the Sentencing Commission (which unlike the guidelines, are not approved by Congress) which say that illegal gun possession is not a “crime of violence” so as to make defendant a “career offender” for aggravated sentencing

Hui v. Castaneda, 559 U.S. 799 (decided May 3, 2010): can’t bring Bivens action (violation of Constitutional rights by federal personnel) against Public Health Service officers for failure to diagnose cancer while in federal custody; 42 U.S.C. §233 provides immunity to PHS officers and suit can be brought only against the United States (which under §233 waives its sovereign immunity)

Jones v. R.R. Donnelley & Sons, 541 U.S. 369 (decided May 3, 2004): statute of limitations for claim under 1991 amendment to 42 U.S.C. §1981 (class action for racial discrimination) is determined by federal catch-call statute for newly created causes of action (four years, 28 U.S.C. §1658) and not state statute for analogous action

El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473 (decided May 3, 1999): The Price-Anderson Act of 1957 got the nuclear power industry going by limiting operators’ liability for nuclear accidents. It also provided for federal court (removal) jurisdiction at defendant’s request. Here the Court holds that this includes removal from tribal courts despite the federal courts’ usual rule of comity requiring exhaustion of tribal court remedies before filing in federal court.

United States v. Padilla, 508 U.S. 77 (decided May 3, 1993): conspirator has no expectation of privacy where co-conspirator also has control or supervision over place searched (no standing to contest consented-to search of car in which cocaine was found)

Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313 (decided May 3, 1971): this is the leading case on defensive non-mutual collateral estoppel: patent case dismissed because in a previous case brought by someone else defendant had established that its patent was valid

United States v. Thirty-Seven Photographs, 402 U.S. 363 (decided May 3, 1971): Censoring for obscenity, per the Court’s prior rulings, required a time limit for the censor to approve/disapprove, and prompt judicial review, Freedman v. Maryland, 1968. Here, to save the Constitutionality of a federal statute (prohibiting importation of “immoral articles”, 19 U.S.C. §1305) the Court feels free to invent a deadline of 14 days for decision and 60 days for completion of judicial review. At issue were pictures from Europe found by customs inspectors which publisher Milton Luros was intending to use to illustrate an edition of the Kama Sutra. (See Wallach, I., “Kama Sutra Sexual Positions (and How to Get Out of Them Without Injury)”, 1976.)

Martin v. City of Struthers, O., 319 U.S. 141 (decided May 3, 1943): ordinance against doorbell-ringing violated First Amendment (plaintiff was a Jehovah’s Witness) (I don’t agree with this decision -- the Court admits that Struthers is a steel town where many work nights and need their sleep)

[Michael P]

I think a helpful frame to view Shelley v. Kraemer is that racially restrictive covenants are void as contrary to public policy (that is expressed in the Fourteenth Amendment). It’s not a very satisfying framework because “void as contrary to public policy” is so amorphous in general, but it’s at least a long-standing place that the idea can fit.

Pruneyard v. Robins is another unsatisfying bookend to court enforcement, or maybe another lens through which to view the same principle, holding that a state may obviate rights by not allowing state courts to enforce that right. One might argue that the 14A implicitly did the same for racially restrictive covenants, although that seems like an even bolder theory than void-as-against-public-policy.

[apedad]

"(I don’t agree with this decision — the Court admits that Struthers is a steel town where many work nights and need their sleep)"

cc, the Court addressed this in their decision.

"Traditionally the American law punishes persons who enter onto the property of another after having been warned by the owner to keep off. General trespass after warning statutes exist in at least twenty states,10 while similar statutes of narrower scope are on the books of at least twelve states more.11 We know of no state which, as does the Struthers ordinance in effect, makes a person a criminal trespasser if he enters the property of another for an innocent purpose without an explicit command from the owners to stay away.12 The National Institute of Municipal Law Officers has proposed a form of regulation to its member cities13 which would make it an offense for any person to ring the bell of a householder who has appropriately indicated that he is unwilling to be disturbed. This or any similar regulation leaves the decision as to whether distributers of literature may lawfully call at a home where it belongs—with the homeowner himself. A city can punish those who call at a home in defiance of the previously expressed will of the occupant and, in addition, can by identification devices control the abuse of the privilege by criminals posing as canvassers."

So I guess a simple, No Solicitors, or similar sign would suffice.

[Dan Schiavetta]

True but what about tenants?

And if they disregard the sign and you have to point it out to them it still means you’ve been awakened.

[apedad]

Isn't the problem with all crimes?

You can say to the person about to murder you thaat they're not allowed to murder you, but you're prolly still going to get murdered.

At least with the sign you can now make a criminal complaint.

Or I guess blow their head off if you're so inclined (and is authorized in your state).

[F.D. Wolf]

"To exercise exclusive Legislation in all Cases whatsoever, over such District."

This provision could not make it any clearer that the idea of the District of Columbia becoming a state would be patently unconstitutional. (Additionally, a purported state of D.C. would seem incompatible with the Twenty-third Amendment, which gave D.C. votes in the electoral college.)

The whole point of having a “federal district” is to have it independent of any state, which might be governed by political opponents of the federal government. This was made abundantly clear in the “Pennsylvania Mutiny” of 1783, when 400 soldiers of the Continental Army attacked the Continental Congress, which was meeting in the nation’s then-capital of Philidelphia, and the government of Pennsylvania refused to protect it. This precipitated both the Congress’ relocation to New York and the provision for a federal district in the Constitution of 1787.

[Dan Schiavetta]

As I understand it the proposal is to make most of the current D.C. a state while retaining a small federal district. This would include the Capitol, the White House, the Mall, and other official buildings. One can see on a map that this area consists of contiguous blocks and is in effect and perhaps by design already well marked off from the rest of D.C.

[F.D. Wolf]

That doesn't make it any more constitutional. There is no constitutional authority for Congress to make part of the federal district a state. If there were, could it make two states from the federal district? How about 30 states? And what would become of the 23d Amendment? Would the residents of the "new" federal district (the Mall) get those electoral votes? (Would there even be any residents?) Or would it just be declared a nullity?

[Dan Schiavetta]

Congress can give the non-federal part of D.C. back to Maryland (just like it gave part of D.C. back to Virginia in 1847) and the residents of that area can petition to separate, just as Maine separated from Massachusetts. Maryland, being a blue state, wouldn’t object, and wouldn’t object to the area being split off from it again.

[F.D. Wolf]

Well, sure, but you're simply describing the same way Los Angeles or Johnsonville, South Dakota might become states, which would be quite a long process and require more than one piece of legislation. Nor would I be so certain that Maryland "wouldn't object" to losing all those taxpayers. In the past Maryland has objected to retrocession because the District was too poor (and too black), but times have changed, and that's a fat tax base.

First, Congress would have to pass legislation giving the land back to Maryland. Then these new residents of Maryland would have to vote to leave Maryland. Then Maryland would have to give them permission to leave (a process I imagine is laid out somewhere in the laws of Mayland). Then the new residents draft their new constitution and vote to approve it, and, finally, Congress votes on their petition for statehood. And, after all the legal hurdles along this road are cleared in 10-15 years, and this nakedly partisan objective is achieved, we deal with the domino effect in other states who wish to divide themselves.

(And there's still that 23d Amendment thing.)

[Bob from Ohio]

"And what would become of the 23d Amendment? "

The incumbent president and his adult family members select 3 electors.

[SMP0328]

If DC became a State without the 23rd Amendment being repealed, that amendment would be abused. This would especially true when the Congress and the Presidency are controlled by the same party. A small number of people would be authorized to reside in what remained of DC (what is currently the “National Capital Service Area”) and vote in Presidential elections. That would give the controlling party 3 bonus electoral votes.

The incumbent president and his adult family members select 3 electors.

The President and his family keep the residence they had before moving into the White House. So, President Biden and Doctor Jill are still considered residence of Delaware (not DC).

[F.D. Wolf]

The President and his family keep the residence they had before moving into the White House.

If they got to pick three electors, I bet they'd happily change their residency. But, heck, they might not even be able to find three eligible electors:

but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

[Brett Bellmore]

They could persuade somebody on the WH janitorial staff to do it; They're just employees, not officers.

[Noscitur a sociis]

How about 30 states?

Why not? Its would be a corrupt and despicable power grab, but the constitution doesn’t ban it any more than it prohibits creating 100 new states with three Republicans residents each somewhere in the middle of nowhere in Texas.

[Brett Bellmore]

"The whole point of having a “federal district” is to have it independent of any state, which might be governed by political opponents of the federal government. "

That's one side of the coin. The other side is preventing any particular state from having its interests unnaturally aligned with the federal government on account of automatically benefiting from its expansion.

[Noscitur a sociis]

This provision could not make it any clearer that the idea of the District of Columbia becoming a state would be patently unconstitutional.

I agree that DC statehood would run counter to the intended structure of our government, but I don’t see the constitutional objection. Article IV says that new states can be admitted, and imposes only two limitations: they can’t be created within an existing state or by joining states or parts of states without the consent of the legislature. DC isn’t within a state, so it doesn’t fall within the scope of those limits.

[SMP0328]

The Constitution-based argument is that the District Clause authorizes the federal government to possess DC only for the purpose of it being the national capital. This means if it doesn't want to possess that land anymore, it must return that land to Maryland (what's called "retrocession"). This is what happened with the part of DC that was returned to Virginia in 1846.

Whether this argument is correct would ultimately be for SCOTUS to decide after Congress purported to admit DC as a State. In the meantime, DC would be in limbo regarding its status.

[ReaderY]

But supposing that’s true, why can’t a small amount of creative legal sleight-of-hand take care of it? A new state could be created from a a small strip of Maryland territory surrounding DC simply by dividing Maryland into two states, which the constitution explicitly permits if Maryland’s legislature consents. If the division is done appropriately, the new state could start with maybe a foot-deep strip of formerly Maryland territory completely surrounding DC on the Maryland side of the Potomac. Retrocession would then very straightforwardly go the part of the former Maryland that is the new state.

[SMP0328]

Any part of DC being retroceded would have to go back to Maryland, not this "small strip of Maryland" that would no longer be part of the State. Otherwise, Congress could give DC over to any State. A Republican Congress with a Republican President could make DC part of Texas, if Texas consented.

[ReaderY]

Is it your position that Congress’ giving what is now Arlington County back to Virginia was unconstitutuonal? If not, how do you distinguish this historical diminishment of the District’s territory and population from the proposed one?

[NvEric]

And, by next year .... there will be the great Biden Gang indictments for criminal conspiracy against a former president. Not only Joe Biden himself there will be many others within the federal government including the FBI, DOJ, and various lawyers and judges throughout the nation. It is a massive "legal" degeneracy for which the nation will recover from.

[Rev. Arthur L. Kirkland]

"It is a massive “legal” degeneracy for which the nation will recover from."

Get an education, clinger. Start with standard English. Focus on sentence structure.

[Rev. Arthur L. Kirkland]

What kind of law professor would figure “Washington D.C. incorporated” is more important (or nearly as important) as Shelley v. Kraemer in the context of the history of the Supreme Court of the United States?

A Federalist Society law professor?

A Republican law professor?

A Cato-Heritage law professor?

A Volokh Conspiracy law professor?

A movement conservative law professor?

A South Texas College of Law Houston law professor?

A disaffected Georgetown law professor?

A “colorblind,” “traditional values” law professor?

How many mainstream law professors at legitimate law schools are using the book this Today in Supreme Court History feature promotes?

The shoddy level of “scholarship” regularly reflected by this feature should be embarrassing. The problem is compounded by the failure of Profs. Barnett and Blackman to correct errors (today’s problem is spectacularly poor judgment rather than the customary factual error) long after they have been expressly identified by others.

Carry on, clingers.