Today in Supreme Court History: September 28, 1787

9/28/1787: Confederation Congress adopts Constitution and sends it to the states.

The Constitution

Comments

[Dan Schiavetta]

Collins v. Virginia, 138 S.Ct. 53 (decided September 28, 2017): granted cert on a case involving the automobile exception to the warrant requirement; the full Court later reversed the Virginia Supreme Court, 138 S.Ct. 1663 (why was this not in United States Reports?) (2018), holding that motorcycle involved in speeding incident which could be seen through the top of a partially enclosed driveway was in the “curtilage” of house and therefore warrant needed

[Noscitur a sociis]

(why was this not in United States Reports?)

It is, 584 U.S. 586. Note that 584 (cases from OT2017) is the most recent volume to be finalized, so some older sources might not have been updated yet.

[Dan Schiavetta]

Thanks -- odd that it took them until now to finalize a 2018 case. Later volumes (going up to 601 U.S., containing decisions handed down this year) are already finalized.

[Noscitur a sociis]

Actually, misspoke—the last one to be finalized is 579 (OT2015). The later ones are still preliminary prints.

I would agree that it doesn’t seem like it should take 10 years to get a case into a reporter, I would agree!

[Dan Schiavetta]

Note: the Confederation Congress did not "adopt" the Constitution. They all knew that Rhode Island would veto it. Instead they agreed simply to pass it along to the States for ratification.

[Commenter_XY]

Correct me if I am mistaken, but I do not believe the Constitution was ever voted upon by the People in any state; it was ratified by special conventions in each state. But no direct popular vote.

An odd quirk of our uniquely American history.

[Dan Schiavetta]

I think you’re correct.

[Mr. Bumble]

How were the special conventions selected? I wonder what the newspapers of the day were saying about this new document.

[Area Man]

That’s not to say it wasn’t hotly debated by the public. It was. But, like constitutional amendments today, it just wasn’t directly voted on.

[Commenter_XY]

Almost as if the drafters of the Constitution studiously avoided democracy (direct vote by the People), as a strategy. Which they did, IMO.

[Mr. Bumble]

Thread hi-jack:
On the good news/bad news front, Paradise is running low of virgins for the leaders of Hezbollah thanks to the IDF.

https://www.dailymail.co.uk/news/article-13901583/Iran-muslims-stand-Israel-khamenei-hezbollah-idf-killed-hassan-nasrallah.html

[Jerry B.]

Couldn't happen to a nicer guy.

[Commenter_XY]

Headless&Ballless-bollah had a really bad night last night.

Hassan Nasrallah 'transitioned' into Hassan Wasrallah with the IDF's help, and he is now riding on that one-way paradise train. But I don't think there are any virgins waiting for him; what awaits him is just heat, and Ya'acov Patish (Jacob's Hammer).

I will just point out: Israel explicitly reserved their right to respond to Iran's direct attack on Israel with hundreds of missiles earlier this year.

Khamenei better start looking over his shoulder. He is not immune.

[Hugo S. Cunningham]

Iran is keeping a low profile because they don't want an Israeli preemptive strike (perhaps with discreet US encouragement) on their nuclear weapons project. Once they have a credible nuclear deterrent, things may look different.

[TwelveInchPianist]

Just my luck, 72 virgins all ready for me and I just got my junk blown off by my pager.

[Mr. Bumble]

Gives new meaning to "never again".

[Dan Schiavetta]

I would not want to have sex with a virgin. Not much fun.

[Mr. Bumble]

I suspect you'll have little to worry about in that regard.

[TwelveInchPianist]

Especially 72 of them. Can you imagine the awkwardness? Put me down for 72 sluts who know what the hell they’re doing

[Dan Schiavetta]

I have noticed that women who were victims of parental sexual abuse . . . how good they are at sex! They are not inhibited, they know how to do everything, they enjoy everything . . . or at least seem to . . . contractions are awfully hard to fake.

I’m getting an expert blowjob, and I’m thinking — Should I be enjoying this?? It’s the product of abuse!! Anyway, back to the incels on this blog . . . take it away . . .

[Dan Schiavetta]

I’ve been listening (again) to Bob Seger’s 1976 song, “Mainstreet”, where he remembers, as a teenager, being entranced by a club dancer.

“I’d stand outside at closing time, just to watch her walk on past.
Unlike all the other ladies, she looked so young and sweet
As she made her way alone down that empty street. . .”

Probably an incest victim, exposing her body for a few badly needed dollars. Those lyrics remind me of an old girlfriend of mine, circa 1983.

[not guilty]

I recall a joke about Osama bin Laden meeting his 72 virgins. The most attractive of them looked like Janet Reno on a bad day. The punchline: "Well, why did you think they are still virgins?"

[Mr. Bumble]

That's funny.

[Dan Schiavetta]

ng:

An uncharacteristically misogynist post from you. Do I have to remind you?? Don't make fun of girls you do not happen to be attracted to. We learned that in 8th grade. Please delete.

[Bored Lawyer]

Good point. Change it to 72 goats. "Well, we never said 72 virgin humans, did we?"

[Dan Schiavetta]

I was hoping for an adult response. Do you actually know any adult women? Have you had sex with them? Are you in a long-term relationship with one? How would she react to your juvenile posts? Do you know what I'm talking about?

[Bored Lawyer]

I am married for over 25 years, you dolt. And what does insulting terrorists and goats have to do with misogyny?

[Dan Schiavetta]

Your response is still juvenile. Like a wisecracking 15 year old would write to “Penthouse”.

[Noscitur a sociis]

Yeah, it’s getting pretty rough in these comments. Why, some guy just wrote,

I have noticed that women who were victims of parental sexual abuse . . . how good they are at sex! They are not inhibited, they know how to do everything, they enjoy everything . . . or at least seem to . . . contractions are awfully hard to fake.

I’m getting an expert blowjob, and I’m thinking — Should I be enjoying this?? It’s the product of abuse!! Anyway, back to the incels on this blog . . . take it away . . .

[Bored Lawyer]

Took the words out of me mouth, err, keyboard. That post was highly offensive. My terrorists/goat comment is a molehill compared to that.

[JoeFromtheBronx]

Art. VII of the Constitution declared that the “ratification of the conventions of nine states shall be sufficient for the establishment of this Constitution between the states ratifying the same.”

Unlike the normal proceedings of a state legislature, a convention would be a special constitutional act of the people.

James Madison argued that the original understanding of these state constitutions was the most important.

OTD, the Confederate Congress passed the constitution to the states:

“Congress having received the report of the Convention lately assembled in Philadelphia

Resolved Unanimously that the said Report with the resolutions and letter accompanying the same be transmitted to the several legislatures in Order to be submitted to a convention of Delegates chosen in each state by the people thereof in conformity to the resolves of the Convention made and provided in that case.”

https://avalon.law.yale.edu/18th_century/ressub02.asp

Each state legislature would set the procedure for special elections for members of state ratifying conventions. “We the People” would therefore have ratified the Constitution by their representatives instead of “We the States.”

The congressional resolution was a carefully crafted agnostic statement that was not a direct "adoption."

https://founders.archives.gov/documents/Washington/04-05-02-0322

[The Margrave of Azilia]

The Confederation Congress didn’t mean to endorse the Constitution; it was simply trying to “pass the buck” and send it to the states to deal with.

[Stupid Government Tricks]

Wasn't the Constitution adopted illegally?

Article XIII. Every State shall abide by the determinations of the united states, in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state.

[The Margrave of Azilia]

11 states seceded from the Union which existed under the Articles of Confederation, and adopted a new Union among themselves, which the 2 holdout states soon joined.

A justified and successful secession, in contrast to bad secession such as (for example) breaking off from your country to form a proslavery republic.

[Dan Schiavetta]

Well put.

[Stupid Government Tricks]

Not well put at all. Non-responsive in every way. Dodged the question. Pounded non-legal answers to a question about legality.

[The Margrave of Azilia]

Revolutionary response to a legal Gordian knot. One could even say the right of revolution was recognized legally in the Declaration of Independence. So…yeah it's legal.

[Stupid Government Tricks]

Still not responsive.

[Alpheus W Drinkwater]

Illegal by the terms of the articles of confederation. Legal in the sense that it was ratified by the people as represented in state conventions, expressing the wish of the majority to toss out the articles and start a new federal government. The legislatures of each state were bound by Article XIII, but the body of citizens of each state were not. Does that make any sense? I'm not really sure.

[Stupid Government Tricks]

As captcrisis likes to say, Not responsive.

Your first point doesn't answer my question. The AofC says perpetual union. Does that not mean the Constitution was illegal?

Your second point, about slavery, justifies condemning their secession on non-legal grounds. Ends justifies the means, eh?

I condemn the 1861 secessions on grounds that bear more resemblance to legality than you, and IANAL. An election is a contract of sorts, a promise to abide by the winner. The southern states would have been pissed as hell if their candidate had won and the northern states had seceded. If the southern states had seceded before the election, I'd have had more respect for them. Every time some fool rattles on about southern honor, ask them where their honor was concerning that election. There was none. Slavocracy honor showed what a sham it was.

[The Margrave of Azilia]

Nah, revolution strikes me as a branch of Just War theory – a threshold requirement of a just war (including a just revolution) is a just cause. Perpetuating African slavery is not a just cause, therefore Confederate secession isn’t justified because it’s tainted in its objective.

As for 1787-1788, in cases of great necessity, throwing off an imbecilic government and getting a better one is a just cause. The means were proportionate – getting at least 9 states to pull out (it was actually 11 in the end) obviated the possibility of a war between seceders and non-seceders, so it was a rare peaceful revolution. The least disruptive method of achieving the end. Thus justified under just war theory and without a war!

[Stupid Government Tricks]

Still can't answer the simple question.

[The Margrave of Azilia]

Your question was:

"Wasn’t the Constitution adopted illegally?"

I argued it was adopted legally.

Piss up a rope.

[Dan Schiavetta]

I'd mute him.

[Mr. Bumble]

Of course you would you pussy ass snowflake.

[Malika]

I'm not for muting, but not wanting to hear from village idiots, boors or jerks is not the same as being scared of them.

[Stephen Lathrop]

Your first point doesn’t answer my question. The AofC says perpetual union. Does that not mean the Constitution was illegal?

SGT — Perhaps you could make a case that the Philadelphia Convention convened illegally. But once it was convened, and did so openly without being thwarted by the existing government, it becomes an open question in political science whether the Articles of Confederation were already gone, and the Confederation itself dissolved.

In general, sovereignty theory at the time insisted that a sovereign which permitted its authority to be rivaled ceased to be sovereign. That, by the way, became a sticking point that was never really resolved, as the Philadelphia Convention worked its way through the details of a sovereignty divided among the states, and a federal government supreme over all of them. That looked to a bunch of the founders like rival sovereignties, which many of them regarded as a practical impossibility.

One reason to pay attention to that historical view of sovereignty is to make sure that if demands for a new constitutional convention ever prove fruitful, everyone has eyes open going in that every syllable of the present Constitution is at least in jeopardy, and arguably nullified at the moment a new convention convenes. The notion of a constitutional convention with a limited agenda is inherently paradoxical. Whatever power could limit the agenda would by that fact alone prove it, and not the convention delegates, possessed sovereignty.

[ReaderY]

If one wants to follow this line of argument, then one could easily argue that the entire revolution and everything that followed it weren’t legal, that legally we had no right to revolt against our lawful king, and legally, we’re all still British colonists and this whole United States business never legally happened. Maybe the revolution was illegal de jure. So what? It’s a fact on the ground that eventually has to be accepted if one doesn’t want to live in never-never land. Same with the replacement of the Articles of Confederation by the Constitution.

One way of thinking of it is that there is a sort of natural law against perpetuities; legal arrangements like contracts and countries and constitutions just don’t last forever, regardless of whether their terms say that they do.

If the Confederacy had won the Civil War, then states today would have a legal right to secede. The only reason they don’t is that the Union won. Nothing whatsoever to do with law or legalities.

[JoeFromtheBronx]

The Declaration of Independence:

whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness

It was determined that the necessity of the situation required a new form of government. The Confederation Congress, including by agreeing to the convention and passing along its work to the states, played a role here.

Madison during the Nullification Crisis wrote to Daniel Webster in 1833, arguing we should avoid:

“confounding the claim to secede at will, with the right of seceding from intolerable oppression. The former answers itself, being a violation, without cause, of a faith solemnly pledged. The latter is another name only for revolution, about which there is no theoretic controversy.”

Madison thought a new constitution dealt with an intolerable situation. The new constitution was a type of revolutionary act that involved a form of secession. Like in 1776, it was done in a legalistic way, as is the style of many such acts.

[Mr. Bumble]

" The Preamble

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United State of America"
It's all right there.

[Dan Schiavetta]

One of the main aims of the Constitution was to "ensure domestic tranquility" (Preamble) which is one of many refutations of the argument (pervasive around here) that the 2A "right to keep and bear arms" allows armed insurrection.

[Jason Cavanaugh]

You're going to need to provide the receipts on people claiming it allows 'armed insurrection.'

The Trump fuckwits around here don't value truth anymore. It shouldn't be hard for you to be better than that, and yet...

[Stephen Lathrop]

Right. "Allows armed insurrection," takes it a smidgen too far. The claim actually made all the time is that the 2A was passed with an eye to equip the citizenry with a means of armed insurrection. That seems to be about 4% of Bellmore's commentary. Plenty of others too. No on-point historical basis for any of it. Spotty cites to anti-Federalists seem to be the best supports available.

[Dan Schiavetta]

The drafters of the 2A were concerned about things like Shays's Rebellion. Not the fantasies of 21st century white males with masculinity issues.

[Malika]

Maybe they were concerned about things like Lexington and Concord?

[The Margrave of Azilia]

"white males"

Because black people in the U. S. have never had any interest in guns or revolution.

[JasonT20]

The claim actually made all the time is that the 2A was passed with an eye to equip the citizenry with a means of armed insurrection.

Which isn't that much less crazy than what captcrisis was saying.

The whole idea that the right to bear arms needs to be protected so that people can rise up against an oppressive federal government is ridiculous on its face. By the time using deadly force to resist government is justified, every other right we value would have been long gone. To make things really simple, we need to guard our voting rights the most carefully. Voting out a government that we think is infringing on our other rights is the simplest solution. And the most likely to be an effective deterrent.

[ReaderY]

As I note above, if you want to argue the constitution wasn’t legal, you could equally well argue the Declaration of Independence wasn’t either. The British could argue that a mere piece of paper didn’t somehow magically give us a right to rebel against our lawful King.

As is true of the situation in Israel today, these sorts of legal arguments just aren’t worth very much. Neither the Israelis nor the Palestininans are going to dissappear just because somehody comes up with a legal argument that the other side shouldn’t exist. And both sides have come up with plenty, none worth the paper they’re written on. Same here.

[JoeFromtheBronx]

There are various forms of “law.”

A declaration of independence is repeatedly tested on the battlefield, even if the revolting side makes a legal argument.

The victors often determine the law, including challenging laws that the Supreme Court eventually declares unconstitutional.

Law provides a language to make claims. It isn’t magic but can be somewhat more civilized than raw power. It also is an aspect of humanity that we try to justify with legal arguments.

[The Margrave of Azilia]

It's been known for people to violate the law and get away with it. That's not the same as saying their behavior was legal; that's rank legal positivism.

If the only moral force behind a law is the threat of punishment, then (a) it gives an excuse to ignore the law when the cops' backs are turned, and (b) it elevates the demands of the mafia and other criminal elements into "law," since they too back up their edicts with force.

[JoeFromtheBronx]

It’s been known for people to violate the law and get away with it. That’s not the same as saying their behavior was legal; that’s rank legal positivism.

A person can "get away with it" in various ways. I agree that is not the same as saying it's legal. The terms need to be more exact.

If the only moral force behind a law is the threat of punishment

Yes. The law should have more moral backing than that. For instance, it should be legitimately passed and enforced.