Today in Supreme Court History: August 13, 1788

8/13/1788: Federalist No. 85 is published by Alexander Hamilton.

Alexander Hamilton

Comments

[Dan Schiavetta]

Oden v. Brittain, 396 U.S. 1210 (decided August 13, 1969): Black denies motion to stay election of newly constituted local government in Anniston, Alabama; election is only three weeks away, and the change from five members elected at large to three did not have to be pre-cleared by the U.S. Attorney General under (the now illusory) §5 of the Voting Rights Act (Anniston is only a few miles from where Black grew up)

White v. Florida, 458 U.S. 1301 (decided August 13, 1982): Powell denies motion for stay of execution because no execution date set, nor is it imminent, and motion doesn’t specify reasons why certiorari will be requested

Pacific Telephone & Telegraph Co. v. Public Utilities Commission of California, 443 U.S. 1301 (decided August 13, 1979): Rehnquist refuses to continue stay of PUC order requiring phone company to refund customers and lower rates; phone company was actually arguing a tax issue for which the Court had previously denied cert

[JoeFromtheBronx]

Hamilton:

"I am persuaded that it is the best which our political situation, habits, and opinions will admit, and superior to any the revolution has produced."

The Constitution was the best they could do in 1787.

It was a "more perfect" union. Not a "perfect" one as we would define the term today. As time went by, we improved it. We can improve it still. Our political situations, habits, and opinions warrant changes, including in the judicial branch.

===

William White was a member of a motorcycle gang who was involved in the murder of a woman who allegedly "liked blacks" and "had to be taught a lesson." The details of the murder are brutal. (Facts from the lower court ruling cited in Powell's opinion.)

He was later resentenced to death in 2000. Then, pursuant to Hurst v. Florida, there had to be new capital sentencing. The elected state attorney had a policy of not imposing the death penalty. The governor took the case away from her.

This was under Gov. Rick Scott in 2017. White was about 72 at this time. He was eventually resentenced to life in prison.

https://dpic-cdn.org/production/legacy/White-William%202017%20resentencing.pdf

I don't see any update.

[Dan Schiavetta]

Rick Scott, who got elected Governor of a state full of old people after being the CEO of the company perpetrating history's biggest Medicare fraud. It's not walking the walk, it's talking the talk.

[CJColucci]

I have long wondered why the assurances of the Federalists about the meaning of the Constitution and its limits on the central government's power are considered any more authoritative than the fears of the Anti-Federalists. Other than that the people who become lawyers often read the Federalist Papers in high school and stopped there.

[JoeFromtheBronx]

You have a set of op-eds that people treat as authoritative by two people who soon became strong opponents regarding what the Constitution requires & who changed their mind about certain things they wrote (some of which was spin anyhow).

Many people who write comments here are neo-Anti-Federalists, even if they frame themselves as originalists speaking the voice of the Federalists. One vocal commenter has repeatedly expressed his distaste for the whole enterprise, thinking the Articles of Confederation should simply have been tweaked.

[Ilya Snowman]

If you think that’s bad, you should read what constitutional scholars in more civilised countries think about your constitutional jurisprudence—particularly the sustained intellectual dishonestly used to produce the ‘liberal’ and ‘progressive’ results over the last sixty years or so. Y’all offer fine examples in what NOT to do.

The Anti-federalists were, of course, correct. Particularly the one astute chap who predicted EXACTLY what would happen regarding the US Constitution’s Commerce and Necessary & Proper clauses. Completely vindicated by history, he is.

It’s too bad your better law schools don’t teach the Virginia & Kentucky resolutions of 1798 as a matter of course, or bother to undertake sincere, honest comparative con law approaches, showing why most other Western countries look down on your blue team judges (and why the make fun of America for not having the rule of law). After all, your lot will LIE and SAY ANYTHING to achieve a desired result of the moment. The rules mean whatever you need them to mean to yield such results.

And then, of course, you project and claim that a crisis in your courts is due to others (simply because you’ve lost some power over them, eg in your SCOTUS).

Carry on twisting your country into a banana republic nonetheless, JoefromtheBronx. You’ll drive it firmly into the ground soon enough, and the world shall be free of your bullshit once and for all. (Do try consider others, for the first time in your life, though, and either completely destroy all your WMDs before you go down and/or transfer them to more responsible, mature, civilised Western countries.)

[CJColucci]

The Anti-federalists were, of course, correct.

Maybe they were. But you never see self-styled originalists quoting anti-federalists as authoritative on what the Constitution means. If many of the anti-federalists were to be taken seriously, the Constitution imposed a centralized government of vast unenumerated powers. They didn’t like that, and opposed it precisely for that reason, but they believed, and supported that belief with serious arguments, that that is what the Constitution did. So why don’t our modern originalists cite them as authority for what the Constitution means and does?

[Ilya Snowman]

You’ll have to ask them, though I doubt most would agree with the Anti-federalist characterisation, let alone your suggested methodology/citation practice.

For, not only could they equally point to Madison, Jefferson, and other American Framers (ones that they wish to fetishize), but, more importantly perhaps, they’ll insist upon their interpretive theory being centred on ‘original public meaning’. They might insist, upon that latter sort of basis, that the US Constitution doesn’t and didn’t impose a centralized government with vast ‘unenumerated’ powers. (So, the meaning of the terms as understood by hoi polloi, ostensibly, or some technical legal meaning in some instances, being dispositive, and NOT the view of this or that American preferred Framer/person living during the framing period.)

What I should like to see more of, instead, is Originalists’ direct engagement with Jack Balkin’s claim that the civil war amendments are unconstitutional and with Sandford Levinson on the 1930s US constitutional revolution (by insisting that it was invalid and illegitimate) even just on Madisonian lines, not anti-federalist ones per se. It would also be helpful if they spent more time showing HOW and why those named scholars are frauds.

[JoeFromtheBronx]

Selective citation of Anti-Federalists started early:

https://balkin.blogspot.com/2024/08/a-federalism-of-forgetting-and.html

[Ilya Snowman]

Are you the author of that post?

[CJColucci]

You’ll have to ask them

I have asked. And I haven't gotten any answers. As for "original public meaning," it is determined by what people say in public. Hamilton and Madison are part of the corpus of usage that determines original public meaning, and so are Patrick Henry and Luther Martin. Neither is conclusive, all are relevant, but today's self-styled originalists cite one and ignore the other.

[Dan Schiavetta]

True.

[Ilya Snowman]

True, but irrelevant.

I'm not an originalist, and so don't really care.

But the originalists can say that you're confusing the acquisition of data required to determine the meaning of terms and concepts at time X with EITHER the means of determining the meaning of entire propositions in a legal text, OR the import of several propositions operating in tandem (here, in the US Constitution).

If you're looking to what the 'public' meaning was of the word 'sneeze' was in 1787, you need wider sources than just what Tom or Bill said. Now, citing to Bill might serve as evidence of that usage, but couldn't, alone, serve as weighty evidence of a preferred meaning.

Just to clarify: are you trolling, or being sincere? Since originalists would and could just scoff at your criticism, yeah?

[Brett Bellmore]

I like to think that I'm an originalist, and I routinely note that the anti-Federalists proved to be the more accurate in their predictions: The Federalists really DID try the abuses the anti-Federalists warned of, and if we hadn't had the Bill of Rights we'd have been screwed from the beginning.

My library has the collected Federalist AND anti-Federalists; It's published in one volume for a reason, what sensible person wants to read just one side of a debate?