Today in Supreme Court History: June 18, 1787

6/18/1787: Alexander Hamilton introduces his plan to the Constitutional Convention.

Alexander Hamilton

Comments

[Dan Schiavetta]

He spoke all day, advocating a President who would be like a dictator and a Senate like the House of Lords, a House of no real powers, and the complete crushing of the states. The delegates had been wary of Madison's plan for a strong federal government, but it looked rather moderate after hearing Hamilton.

He must have known that his plan was a non-starter. No one followed up on it. Nor had he prepared anyone for it. And he was so opposed to the compromises later being made that he walked out of the Convention. In short, there is no evidence that Hamilton deliberately meant to help Madison's plan with his speech, but that was the effect it had.

[The Margrave of Azilia]

"a President who would be like a dictator and a Senate like the House of Lords, a House of no real powers, and the complete crushing of the states"

Congress has some powers left, and there's always the role of the administrative state, but otherwise what we have today looks more like Hamilton's plan than the Constitution as written.

[John F. Carr]

Fidel Castro's inspiration?

(Castro had a reputation for long speeches that would leave any capitalist exhausted and longing for a glass of wine in a hot tub.)

[Dan Schiavetta]

Walker v. Sons of Confederate Veterans, 576 U.S. 200 (decided June 18, 2015): Texas can refuse request to put Confederate battle flag on license plates; it’s “government speech” and government can determine content

Allen Bradley Co. v. Local Union No. 3 Teamsters, 325 U.S. 797 (decided June 18, 1945): Sherman Act violated by union and employers working in concert to exclude competition (here, electrical workers and manufacturers excluding out of state manufacturers outside union’s geographical bargaining jurisdiction)

Department of Homeland Security v. Regents of the Univ. of California, 591 U.S. --- (decided June 18, 2020): cancels Trump Administration’s attempt to rescind DACA program (Obama-era program allowing those who entered United States illegally as children to apply for deferral of removal, work authorization and various other allowances); rescission was done without explanation (e.g., “what if anything to do about the hardship to DACA recipients”) in violation of Administrative Procedure Act

Yeager v. United States, 557 U.S. 110 (decided June 18, 2009): acquittal on some counts (wire fraud) precluded retrial on Double Jeopardy grounds even though it was logically inconsistent with the jury failing to reach a verdict on the other counts (insider trading and money laundering)

Gross v. FBL Financial Services, Inc., 557 U.S. 167 (decided June 18, 2009): plaintiff alleging age discrimination under ADEA must show but-for causation (i.e., age was the only reason for adverse employment event) instead of mixed-motive causation (e.g., also due to corporate restructuring); 5 - 4 decision

Barnes v. United States, 412 U.S. 837 (decided June 18, 1973): jury did not need to be instructed that defendant possessing stolen/forged Treasury checks must have known they were stolen from the mails (an element of the crime) (I learned a new term, or rather an old one -- passing along a forged document, like a check, is called “uttering”)

United States v. Helstoski, 442 U.S. 477 (decided June 18, 1979): under Free Speech and Debate clause evidence of what Congressman actually did in Congress in exchange for bribes cannot be introduced (so how can you prosecute someone like Helstoski, who took money from foreign nationals in exchange for introducing private bills allowing them to stay in the country? because of this decision he went free though the charges ended his career)

Ohio v. Clark, 576 U.S. 237 (decided June 18, 2015): Confrontation Clause did not require exclusion of preschooler's answer to teacher that his bruises were inflicted by defendant (statement was not “testimonial” because not for purpose of assembling evidence; teacher wanted to know if her duty to report abuse was triggered) (sounds to me like stretching to admit a statement that obviously has to be admitted)

Zobrest v. Catalina Foothills School District, 509 U.S. 1 (decided June 18, 1993): Individuals with Disabilities Education Act required school district to provide sign language interpreter for deaf child in Catholic school even though she would at times be relaying religious ideas

Torres v. Puerto Rico, 442 U.S. 465 (decided June 18, 1979): warrant needed to search luggage of persons traveling from mainland United States to Puerto Rico just like with all other non-international travel

[apedad]

Re Ohio v. Clark:

Question

1. Does an individual’s obligation to report suspected child abuse make that individual an agent of law enforcement for purposes of the Confrontation Clause?
2. Do a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause?

Conclusion (Unanimous!)

No and no. Justice Samuel A. Alito, Jr., delivered the opinion of the Court in which five justices joined. The Court held that the three-year-old’s statements to his teachers were non-testimonial because the totality of the circumstances indicated that the primary purpose of the conversation was not to create an out-of-court substitute for trial testimony. In this case, there was an ongoing emergency because the child, who had visible injuries, could have been released into the hands of his abuser, and therefore the primary purpose of the teachers’ questions was most likely to protect the child. Moreover, a very young child who does not understand the details of the criminal justice system is unlikely to be speaking for the purpose of creating evidence. Finally, the Court held that a mandatory reporting statute does not convert a conversation between a concerned teacher and a student into a law enforcement mission aimed primarily at gathering evidence for a prosecution.

Justice Antonin Scalia wrote an opinion concurring in the judgment and argued that a statement that satisfies the primary purpose test alone is sufficient to be testimonial. Justice Ruth Bader Ginsburg joined this opinion. In his separate opinion concurring in the judgment, Justice Clarence Thomas wrote that the primary purpose test was not the proper test to determine whether a statement is testimonial. Instead, Justice Thomas argued that only statements that bear “sufficient indicia of solemnity” are testimonial. (oyez)

OK lawyers, what does bear “'sufficient indicia of solemnity' are testimonial" mean?

[Dan Schiavetta]

The Confrontation Clause is a product of a patriarchal era of “say that to my face!” and dueling (which is how Alexander Hamilton lost his life). That it could have any relevance to the uncovering of child abuse was beyond the imagination of the Framers. I think the Court recognized that.

[Noscitur a sociis]

Pace captcrisis, the impetus for the confrontation right was an English practice of trying political cases with affidavits and written accusations, with the treason trial of Sir Walter Raleigh being a notable example. (The key evidence was a written confession from his supposed coconspirator: Raleigh was denied permission to bring that person to court to be cross-examined.)

Justice Thomas takes the position that the confrontation clause only bars the use of out of court statements that are similar to this kind of historical practice, such as a sworn deposition or affidavit, or something similar, like a formal interview with a police officer.

[apedad]

O/T

on June 14, 2024, the U.S. House of Representatives passed H.R. 8070, the National Defense Authorization Act for 2025 which included this provision:

Except as otherwise provided in this title, every male citizen of the United States, and every other male person residing in the United States, between the ages of eighteen and twenty-six, shall be automatically registered under this Act by the Director of the Selective Service System.

So, would this apply to transgender males?

Or transgender women?!?

BTW, I think the SSS should apply to women too (which would then also make the two questions above moot).

[Mr. Bumble]

I'm curious as to what database/s will be used to accomplish this.

Agreed it should include women.
"...every other male person residing in the United States,..."
MS-13 gang bangers and every other illegal alien male between 18-26?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Apparently the Marines only take people up to age 26, but the Army takes people up to age 35. When I got out of the Navy, they told me I could get back in up to age 26 plus how long I had been in.

[Magister]

The House bill won't make it through the Senate; the Republicans loaded it with culture war issues (according to Politico). Meanwhile the Senate Committee on Armed Services advanced a bill that would register women for the Selective Service (something that's been put forward in the Senate before but never passed). Congress will definitely end up giving a big pile of money to the military; unclear what odd amendments will survive the compromise process.

From (what seems to be) the text of the bill:

(a) Automatic Registration.--The Military Selective Service Act (50
U.S.C. 3801 et seq.) is amended by striking section 3 (50 U.S.C. 3802)
and inserting the following new section 3:
``Sec. 3. (a)(1) Except as otherwise provided in this title, every male citizen of the United States, and every other male person residing in the United States, between the ages of eighteen and twenty-six, shall be automatically registered under this Act by the Director of the Selective Service System.
``(2) This section shall not apply to any alien lawfully admitted to the United States as a nonimmigrant under section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101) for so long as he continues to maintain a lawful nonimmigrant status in the United States.
``(b) Regulations prescribed pursuant to this section (a) may
require--

It doesn't say anything about unlawful nonimmigrant status, but maybe it would just give the government a chance to catch those (if they provided the information this might require of persons to whom it applies) or add an additional violation of the law when they are otherwise caught.

[SMP0328]

BTW, I think the SSS should apply to women too (which would then also make the two questions above moot).

I think the SSS should be abolished. This would also moot those questions but with the added benefit of ending people having to register for a nonexistent draft.

[JoeFromtheBronx]

The Federalist Papers, mostly written by Hamilton and Madison with Jay (later the first Chief Justice of the Supreme Court) writing a handful, continue to have a special place in constitutional analysis.

They were influential op-eds written by two people who later became leaders in opposite political parties. They were not official commentaries on the meaning of the Constitution.

Madison is labeled the "Father of the Constitution," but he disagreed, strongly, with certain parts of the final compromise. His views on the document developed over time & clashed sometimes with the median position. For instance, his interpretation of the Establishment Clause was stronger than many people at the time.

[Dan Schiavetta]

"The Federalist was written by one man (Hamilton) who was so opposed to the basic ideas of the Constitution that he did not attend most of the sessions of the Convention, who spoke rarely in the Convention, and when he did speak, spoke most eloquently on behalf of aristocracy; by another (Jay) who was not at the Convention at all and whose Anglophilia would have predisposed him to a far more aristocratic scheme than the one the conventioneers finally framed; and by a third (Madison) who had a view of a necessarily unfettered supremacy of the national government that had not been accepted by the other delegates. Under the circumstances, it cannot be surprising that The Federalist promotes a conception of the Constitution that is, among other things, more aristocratic than the consensus of those who actually wrote the document." -- Charles Mee, "The Genius of the People", 1987.

[JoeFromtheBronx]

Torres v. Puerto Rico avoided conclusively deciding the remaining weight of the Insular Cases, which held various constitutional provisions did not apply to “unorganized” territories.

Four justices concurred to state they believed the Bill of Rights applied to Puerto Rico. The Supreme Court has never overruled the Insular Cases. Nonetheless, it is unclear how much is left of the cases, if we combine statutory rules and a SCOTUS finding that fundamental rights apply to territories.

(For instance, Roe v. Wade applied to Guam, which later passed a strongly anti-abortion policy that was struck down by the lower courts, including in light of Planned Parenthood v. Casey.)

Justice Gorsuch has said that we should overrule the Insular Cases. Justice Sotomayor generally concurs. Nonetheless, the Supreme Court has not shown a desire to do so, even when it was directly requested in multiple cases.

[Dan Schiavetta]

Thanks! You are a welcome addition here.