Today in Supreme Court History: October 27, 1787

10/27/1787: First Federalist Paper is published.

Alexander Hamilton

Comments

[Dan Schiavetta]

Maxwell v. Bugbee, 250 U.S. 525 (decided October 27, 1919): New Jersey tax on out-of-state inheritor based on ratio of property owned in state to out-of-state does not amount to an impermissible tax on out-of-state property (which would violate art. IV, §2, clause 1)

Simpson v. Union Oil Co. of California, 396 U.S. 13 (decided October 27, 1969): whether past damages are available for illegally requiring fixed sale price of gasoline sold “on consignment” (a violation of the Sherman Act) is to be determined case by case, and here, they are

United States v. Morton, 112 U.S. 1 (decided October 27, 1884): time spent as cadet at West Point counted towards “time in service” for the purpose of calculating increase in pay

[JoeFromtheBronx]

The Federalist Papers are impressive.

They are also not the official legal commentary on the Constitution. The papers are op-eds primarily written by two individuals, who were, at times, doing some spin. Both had constitutional beliefs with which many at the time strongly disagreed.

They also changed their minds on constitutional matters such as the removal power.

And, yes, they became ideological rivals regarding what the Constitution “truly” meant.

==

SCOTUSBlog last year included “Clarence Thomas loan report spurs new ethics criticism of US Supreme Court” in their daily reads.

As people vote, let’s remember the Supreme Court is on the ballot.

https://www.scotusblog.com/2023/10/the-morning-read-for-friday-october-27/

[Malika the Maiz]

“They are also not the official legal commentary on the Constitution.”

Can’t be said enough.

[Brett Bellmore]

And they were one side of a debate, they should be read together with the anti-Federalist papers, anyway.

[Sarcastr0]

That is also reductive - the debate wasn't a 2-sided one. And even among the few Founders involved in this debate, both foreign alliances and slavery were unspoken political drivers in the background.

This is how original intent originalism can get you almost wherever you want to go - everyone was trying everything and many had agendas that are not clear unless you read other people.

[David Nieporent]

It's also ahistorical; there were no "the anti-Federalist papers." The Federalist Papers were a coordinated, organized advocacy campaign for the constitution; the anti-Federalist papers were just the writings of various independent people opposed to ratification that were compiled into one publication many years after the fact.

[jdgalt1]

There is no symmetry here for the same reason the Federalist Papers should be given great weight in determining original intent -- because they were written by the principal authors of the Constitution. While the Anti-Federalist papers were written by people who didn't even attend the convention.

I'll grant that many of the predictions made by the Anti-Federalist writers have turned out to be spot on. But that was done despite the Constitution and in violation of it, not in compliance even when later courts have falsely constructed the Constitution so as to claim compliance with it.

[Armchair]

Perhaps you can point to the "Official legal commentary" on the Constitution at the time it was being ratified?

[Malika]

I think his point is there is/was none but some seem to treat the Federalist Papers as it.

[CJColucci]

Exactly. The Federalist Papers were partisan spin, of unusually high quality to be sure, but partisan spin nonetheless. Why the assurances of Hamilton, Madison, and Jay about what the proposed Constitution would or wouldn't do are considered more authoritative than the fears of Patrick Henry, Robert Yates, and Melancthon Smith about what it would or wouldn't do is hard to understand. But the people who become big-time lawyers and judges read The Federalist Papers in high school so they have an unearned authority when interpreting the Constitution.

[David Nieporent]

Why the assurances of Hamilton, Madison, and Jay about what the proposed Constitution would or wouldn’t do are considered more authoritative than the fears of Patrick Henry, Robert Yates, and Melancthon Smith about what it would or wouldn’t do is hard to understand.

Well, because the People decided to ratify the constitution after hearing those arguments.

"You should ratify the constitution because it will do great things X, Y, and Z" vs. "You shouldn't ratify the constitution because it won't do X, Y, and Z, but will do bad things A, B, and C."

The most plausible interpretation is that people thought that it would do X, Y, and Z.

[CJColucci]

That’s not how it works.
Maybe they wanted precisely what the Anti-Federalists feared. More likely, each voter had his own, cross-cutting ideas of what the proposed Constitution would and would not do, and the vote doesn’t reflect a coherent, unified view.

[Armchair]

"The papers are op-eds primarily written by two individuals, who were, at times, doing some spin."

That's...not quite accurate.

[Sarcastr0]

What's your specific beef?

[Malika the Maiz]

“On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.”

[Mr. Bumble]

Sounds like a description of the Obama, Biden and God forbid, Harris administrations.

[Malika the Maiz]

It’s from Federalist #1.

[Dan Schiavetta]

I disagree. I think dictators come to power more by promising order.

We must remember that The Federalist was written by three men who wanted a strong central government (stronger than was actually agreed to at the Convention) and wanted to depict their opponents' position as more likely to lead to dictatorship.

[Brett Bellmore]

And their actions after gaining power, (Such as the Alien and Sedition acts.) put a quite different light on their insistence that a bill of rights wasn't really needed.

[Dan Schiavetta]

It's strange to reflect that, years later, a strong federal government was required to guarantee and enforce individual rights. Yet another reason why "originalism" harks back to a world that no longer exists.

[Krayt]

And yet, here we are, with seductive patter abounding, struggling mightily to initiate censorship for harrassment, and flat out seizure of wealth without compensation. These are couched in populist initiatives that make cracks into things forbidden to power, for good, well-known historical reasons.

Go figure.

[Sarcastr0]

initiate censorship for harassments
You mean, laws against harassments?

flat out seizure of wealth without compensation
If this refers to asset forfeiture, I think you'll find plenty of politicians against it.

things forbidden to power, for good, well-known historical reasons.
A pretty recent history, though. You do know that our Bill of Rights expanded vastly in the post WW1 era, and stuff like Freedom of Speech was pretty narrow before that, eh?

If you hate government, dunno why you are leaning on the Founders since they were aristocratic government designing political types.

[Krayt]

initiate censorship for harassments
You mean, laws against harassments?

Yes. You grok. Something tells me you support it. You pander to the power grabbers. Or maybe are one of them. I will be happy to be wrong.

Unless you mean amending the Constitution. In which case that’s bad form, but good luck.

flat out seizure of wealth without compensation
If this refers to asset forfeiture, I think you’ll find plenty of politicians against it.

No, “unrealized capital gains”. Also, direct seizure of wealth beyond that.

As for expansion of Bill of Rights, keep at it! Too many working to constrict it.

[Sarcastr0]

No, I don't think allowing harassment is a price we need to pay for freedom. Not is that required by the First Amendment.
Me, and most everyone else including most of the often libertarian legal experts around here have that position.

I don't know much about unrealized capitol gains, but the power to tax is in the Constitution, and gains tells me it's income, not wealth.

Your blanket condemnation seems to ignore that the history of our country is that it's become more free as it's modernized, not less.

[Mr. Bumble]

Couldn't be more of a douche if you tried.

[Malika]

How is that statement douche Bumble? It looks like he just disagreed with Krayt.

[Sarcastr0]

Big Founder's intent originalist also thinks 3 of the Founders were authoritarians.

He likes originalism because of how it is certain and clear and instantiates small government and libertarian principles.

[Noscitur a sociis]

Ah yes, that famous proponent of the Alien and Sedition Acts and skeptic of the Bill of Rights, James Madison.

[Sarcastr0]

This is neither here nor there by the time of Adams' administration, but if I recall the Chernow Washington biography correctly, Madison changed his opinion on the benefits of a strong central government sometime after ratification upon his return to Virginia, and hanging out with the plantation set there.

Worked out fine, though. The BoR as written turned out pretty great stem to stern.

[JoeFromtheBronx]

There is some truth to the remarks.

Liberty does need government. The Declaration of Independence spoke of governments being created to secure rights.

Demagogues also repeatedly have a populist message.

In general, it is the road to expand power. The PTB often speaks in the name of the rights of some. For instance, Andrew Jackson supported strong executive power in the name of rights. At least of white males.

The Framers might have had in mind people like Julius Caesar.

[The Margrave of Azilia]

Milosevic began rising as a politician after he denounced (alleged) police brutality against Serbs.

Robespierre and that crowd were fervently for the Rights of Man.

Some big-government-loving demagogues campaign in the name of "freedom."

[F.D. Wolf]

October 27 was not a good day for religious freedom in America.

On October 27, 1659, Marmaduke Stephenson and William Robinson were hanged in Massachusetts Bay Colony for the crime of being members of the Society of Friends (the Quakers). In 1658, the Massachusetts legislature had enacted a law that decreed anyone convicted of being a Quaker would be banished from the colony upon pain of death should he return. Two more Quakers, Mary Dyer and William Leddra, were hanged in 1660 and 1661, respectively. In Quaker tradition, these four are known as “the Boston martyrs”. In September 1661, King Charles II issued a mandamus to the colony, demanding the cessation of all further persecution of Quakers and a release of all those under sentence.

On October 27, 1838, Missouri Governor Lilburn Boggs issued Executive Order 44, known as the Mormon Extermination Order, which called for Mormons to be “exterminated or driven from the state”. In 1976, Gov. Christopher “Kit” Bond would issue an apology and officially rescind the order.

Today, October 27 is recognized as International Religious Freedom Day.

[Dan Schiavetta]

thanks

[JoeFromtheBronx]

Richard Brookhiser in his book "Give Me Liberty" discussed the Flushing Remonstrance in defense of Quakers in New Netherlands.

[Flushing is now a neighborhood in Queens, NY]

The Director-General of New Netherland, Peter Stuyvesant, was not a fan of the Society of Friends. They have a benign flavor these days but in the beginning, they were troublesome sorts, the Jehovah's Witnesses of the day. They made their opinions known in public and wouldn't even doff their hats to their betters.

PS didn't execute any Quakers, but they suffered corporeal punishment, fines, imprisonment, and barred from entering the colony. Eventually, the company told him that they agreed the Quakers were pests, but religious liberty was good for business.

But, the people behind the Flushing Remonstrance at the time were pressured to recant.

Charles II, after the Brits took over New Netherlands, protected freedom of conscience there.

[bernard11]

Thanks, F.D.

[Mr. Bumble]

What a slow weekend here on the VC comments.

[BrotherMovesOn]

Maybe use the downtime to do something useful instead of hanging out here waiting for an insult-fest?
I've heard many people in their 70s get their GEDs.

[hobie]

The Federalist Papers talked extensively about the separation of church and state. At the time Catholics and Jews were being persecuted and the framers noted that. So, by all means, quote the Federalist...just be sure to quote all of it

[BrotherMovesOn]

Colonial history, a century before the Federalist Papers, is also an interesting path to take to look at the general issue, even if not directly relevant to the particular concerns the Framers were dealing with.
As F.D. Wolf notes, the MBC ran quite roughshod over the life and liberty of religious outsiders, until Charles II put a stop to it.
There is a prominent statue of Mary Dyer on the grounds of the State House. “Mary Dyer Quaker Witness For Religious Freedom.