Today in Supreme Court History: October 28, 1787

10/28/1787: James Wilson gives speech to the Pennsylvania ratification convention, arguing that there was no need for a Bill of Rights.

Justice James Wilson

Comments

[Dan Schiavetta]

Jackson v. Allen, 132 U.S. 27 (decided October 28, 1889): case should not have been removed because diversity of citizenship not clearly established; vacating judgment after trial and remanding to Circuit Court with directions to remand to state court (interestingly the Court notes that citizenship at the time of removal was relevant, as well as at the time of commencement; I thought only the latter was looked to) (I know from experience that federal judges will insist on tracking down every silent partner of every party before ruling on diversity, even if no one is contesting it)

Bartone v. United States, 375 U.S. 52 (decided October 28, 1963): a federal court can’t extend a sentence for violation of parole without the parolee being present (see Fed. R. Crim. Pro. 43)

Fuller v. Alaska, 393 U.S. 80 (decided October 28, 1968): here the Court holds that a recently announced exclusionary rule (as to evidence from illegal wiretaps) is to be applied only prospectively

[apedad]

Wilson's opening describing why there was no need for a Bill of Rights.

It will be proper, however, before I enter into the refutation of the charges that are alleged, to mark the leading discrimination between the state constitutions, and the Constitution of the United States. When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve; and therefore upon every question, respecting the jurisdiction of the house of assembly, if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating federal powers, another criterion was necessarily introduced, and the congressional authority is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of union. Hence it is evident, that in the former case every thing which is not reserved is given, but in the latter the reverse of the proposition prevails, and every thing which is not given, is reserved. This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights, a defect in the proposed Constitution: for it would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges, of which we are not divested either by the intention or the act, that has brought that body into existence. For instance, the liberty of the press, which has been a copious source of declamation and opposition, what control can proceed from the federal government to shackle or destroy that sacred palladium of national freedom? If indeed, a power similar to that which has been granted for the regulation of commerce, had been granted to regulate literary publications, it would have been as necessary to stipulate that the liberty of the press should be preserved inviolate, as that the impost should be general in its operation.

https://americanfounding.org/entries/state-house-speech/

I think most of us agree have the BoR is a good thing for the US.

[Brett Bellmore]

In no small part because this critical distinction between state and federal governments didn't survive. The federal government didn't remain a government of delegated powers for long, and is scarcely one at all, at this point.

[apedad]

I'd say with the rise of interstate and international business, finance, communications, travel and then civil rights, global conflicts, and environmental concerns, having the federal govt enhanced power is/was a natural occurrence.

The problem with you guys (as I've said before), it not that you're inherently wrong, it's that you were born in the wrong century.

[Dan Schiavetta]

The Framers were dealing with a situation where the idea of a United States had not really settled into everyone's minds. They had clear memories of when the states (colonies) had more in common with Britain than with each other. That's not the case now of course. The differences with the federal government are due to ideology, which was not the case then.

[Brett Bellmore]

And the problem with your position, was I've remarked before, is that the people who felt as you do didn't bother to actually change the Constitution, they just suborned the judiciary into pretending that it authorized the scale of federal government they thought necessary.

Having a small federal government constitution that's interpreted to authorize a large federal government isn't the same as having a large federal government constitution. Functionally, it's a quite different thing.

[apedad]

How do you know they envisioned a small federal govt?

The two Houses can make their own rules and:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Actually seems that the federal govt - even as designed at the beginning - was meant to be expansive.

[Brett Bellmore]

I know, because I've actually read the Constitution, and it's pretty darned explicit about limiting the federal government to enumerated powers. Why, there's even an amendment in the Bill of Rights to underscore that.

[Noscitur a sociis]

I don’t think you’re really engaging with apedad’s point. If a primary power/responsibility of the federal government, as originally conceived, constructed, and delegated, is managing interstate and foreign commerce, you’d expect to see it doing more as those things increased even if its assigned powers remained the same.

[ducksalad]

Only in the sense that you’d expect to see more customs agents since there are more imports, a larger treasury office staff because there are more transactions.

But to take a couple examples:
– Is a laundry local or national for the purpose of regulations? In 1790 an out of state traveler might drop by a laundry, and the tub might have come from another state. It wasn’t thought that made the laundry itself ripe for federal regulation, even if it was on a main road and had quite a few such customers. Now even the remotest hypothetical possibility that rural laundry in the woods of Appalachia could have an out of state customer is enough. That had nothing to do with growth.
– Wheat grown for your own use. Local or national? In 1790 some wheat definitely crossed state lines. It wasn’t thought back then that gave Congress power over subsistence farming. Is there some threshold percentage of wheat crossing state lines that makes all wheat interstate? If so, how does the constitution set that threshold?

[CJColucci]

And you know all this how?

[ducksalad]

Is there something you’re contesting, or are you just seeking the source of my knowledge so you too can be enlightened?

You probably don’t seriously deny that the feds now claim authority to regulate any aspect of a local laundry or growing of wheat under the commerce clause.

So it’s whether in 1790 the “public meaning” of commerce among the states extended to growing wheat for your own use or running a public washing place. Since these were contested and controversial even in the 1930’s and 1960’s, respectively, I believe in 1790 it wasn’t a close call. But if you’ve got a different opinion, bring it on.

[apedad]

ducks, your own points defeat your argument.

"In 1790 an out of state traveler might drop by a laundry, and the tub might have come from another state."

There is no 'might' now; we have millions of interstate (and international) travelers and hundreds of thousands (*) of tubs/washing machines are shipped interstate (and internationally).

* Fortune Business Insights says the global Industrial Laundry Machine Market was valued at USD 2.61 billion in 2022.

[jdgalt1]

I hear that "modernization" argument from liberals again and again, and I'm still not impressed. The Constitution authorizes only the same limited government it did when it was written (with only those changes made by the amendment process). Those who consider that limited federation to be unacceptably antiquated should be pursuing that same amendment process to change it -- not just appointing "injustices" who misread the document on purpose, as Democrats have been doing since before the Civil War. If tearing out those illegitimate changes ends "democracy" then let it.

[Noscitur a sociis]

This take is not only wrong, but so obviously wrong that I wonder how so many smart people could take it relatively seriously. While the federal government is one of limited and delegated powers, how could anyone think that without a bill of rights, it was restrained from imposing cruel and unusual punishments for crimes without a grand jury indictment, at a proceeding where the defendant didn’t have access to counsel? Or just establishing a government church in DC?

[Alpheus W Drinkwater]

At the time Wilson and others were making this argument, I think the main consideration was getting the Constitution ratified as written, avoiding having it picked apart by the various state conventions. They were arguing against a Bill of Rights somewhat in bad faith. They weren't really opposed to one in theory, but they were worried that the absence of one in the Constitution as framed would become a strong reason to oppose ratification.

[JoeFromtheBronx]

Chief Justice Marshall declared the Constitution has “what may be deemed a bill of rights for the people of each State” [Fletcher v. Peck].

See Art. 1, sec. 9 & 10. Many of these provisions arose in early SCOTUS cases. Others were significant overall.

Art. III protects a right to a jury. There are other rights including a rule against religious tests. Some at the time noted that this rule reflected a wider principle of separation of church and state.

The argument against a Bill of Rights is weaker when there are already limits. Why were those necessary? Why wasn’t that list dangerously partial?

James Madison eventually got with the program & tossed in what became the 9th and 10th Amendments as catchall safeguards to address the last point.

[SMP0328]

James Madison eventually got with the program

Madison was pragmatic. He never believed a bill of rights was needed, but he understood that the Constitution would not be adopted without the assurance that one would be added and that the States would almost certainly renounce the Constitution if that promise was broken.

[JoeFromtheBronx]

"he understood that the Constitution would not be adopted without the assurance that one would be added"

This ultimately means that a BOR was necessary, if only as a means to ratify the Constitution and retain public support.

Also, Madison's election to the House of Representatives was largely tied to a campaign promise to support the BOR.

Jefferson did support a BOR on principle. As the future head of the Republican Party, he had a good sense of the ethos of the times.

[JoeFromtheBronx]

We sometimes talk about films here.

"A Golden Life" by Ginny Kubitz Moyer is an enjoyable novel that takes place in 1930s Hollywood with a bunch of family dramas mixed in. It focuses on the plans to make a film of the life of a 19th Century actress. The now 90-year-old opposes the film & a top producer goes with his secretary to try to talk her into accepting it.

[Michael Ejercito]

I heatd a rumor that the Bill of Rights was adopted to preserve slave patrols.

[JoeFromtheBronx]

The argument made does not seem convincing to me though it is done in verbose speak that is a bit tl;dr.

There were some other reasons for the opposition than a basic lack of need or that they were a threat. As I said separately, those arguments are harmed because the Constitution already has some rights. In for a penny, in for a pound there.

A general concern was that amendments would weaken the Constitution. The lack of amendments also was an argument against ratifying the Constitution at all. Federalists were suspicious about the good faith of supporters of amendments.

Some Anti-Federalists were upset at the proposed amendments. They were dismissed as “tubs tossed to a whale,” a way to take the attention away of those worried about the ratification of the Constitution.

Some opponents wanted structural limits on federal control of trade and the like. Freedom of the press and the like were tossed in because they were so broadly popular.

[Michael Resanovic]

Wilson, Iredell and Hamilton were quite likely right about the lack of necessity, if not the utility. But all three men were right about the danger.

As Hamilton said: [A Bill of Rights] “would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted.”

Consider how many confused people (even judges!) think the fourth amendment actually *empowers* cops to do this or that, rather than merely being a statement of essentially timeless restrictions on the legislative power. Remember that the next time you're subjected to a "Terry Stop" in a state whose people and laws granted no such power.

Likewise, we might enjoy our federal right to misdemeanor trial were it not for people playing "Simon says" with the language of the Sixth Amendment.

In so many contexts rights not spelled out are treated as if they weren't rights at all. And the rights that are are treated as if they necessarily trump unenumerated rights.

The trick is not to read a Bill expressio unius. It is just a partial listing of important rights. It wasn't primarily written for judges, but for all of us. And it isn't a substitute for thinking carefully about how to cause the greatest justice and least injustice with every law we pass.

[Alpheus W Drinkwater]

Hamilton's point is fascinating, and probably prescient. His argument brought forward to today would be that the vast increase in the power of the federal government was actually encouraged by the existence of a Bill of Rights, not restrained.