Today in Supreme Court History: November 15, 1882

11/15/1882: Justice Felix Frankfurter's birthday.

Justice Felix Frankfurter

Comments

[Dan Schiavetta]

The Harrisburg, 119 U.S. 199 (decided November 15, 1886): can’t sue in admiralty for wrongful death because Congress has not provided for it (overruled by Moragne v. States Marine Lines, 1970)

Moody v. Daggett, 429 U.S. 78 (decided November 15, 1976): parolee who committed a crime while on parole does not have normal entitlement to immediate parole revocation hearing even though in custody after warrant issued

Albertson v. Subversive Activities Control Board, 382 U.S. 70 (decided November 15, 1965): requiring members of the Communist Party to register as such violates self-incrimination clause (by doing so they could automatically be prosecuted under the Smith Act) (previously the Court had held that requiring Party leaders to submit a list of members was not unconstitutional, Communist Party v. Subversive Activities Control Board, 1961) (the Board was abolished in 1972)

[JoeFromtheBronx]

Justice Frankfurter is known for his verbose ways and for acting like a law professor on the bench (when it was much less of a "hot bench") and in conferences.

He also is known for his judicial restraint. Frankfurter was particularly concerned about public school education. He would have upheld requirements regarding pledging allegiance even for those who were conscientiously opposed.

He argued that it was a necessary part of civics education & essential to promote patriotism. This was also shown by a strong support for the separation of church and state. See, e.g., his concurrence in McCullum v. Board of Education:

"The modern public school derived from a philosophy of freedom reflected in the First Amendment."

Vashti McCollum (named after the queen who refused to flaunt her beauty in front of everyone in the Book of Esther), the mom who brought that case, wrote a good behind-the-scenes account.

(One Woman's Fight)

[apedad]

"He argued that it was a necessary part of civics education & essential to promote patriotism."

And that is found where in the Constitution? (not directed at you JFtB)

[JoeFromtheBronx]

I think civics education is an important part of training citizens for roles that are referenced in the Constitution including voting.

He would also argue that patriotism was an important value to instill to ensure people upheld constitutional values, necessary to protect the continuance of the Constitution.

Frankfurter also argued that compelling state interests were factors to take into consideration when determining if a law violated constitutional provisions. The terms of the First Amendment, for instance, in his view were not absolute.

Finally, he can support things as good overall without them arising from the Constitution as such.

[Stupid Government Tricks]

And why is it the government's business to train citizens for various roles, especially voting?

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

All governments' problems begin with them defining their own limits and conflating themselves with society.

[Brett Bellmore]

Valuing civic education and instilling patriotism while being careful to enforce separation of church and state in schools is perfectly understandable: The state itself is the state's established church.

[JoeFromtheBronx]

The public school part would be important largely because it was a way for society at large, all types of people, to come together for a united purpose.

I am not, to be clear, putting out Felix Frankfurter as someone without fault. And, the importance of public school can be reaffirmed without dissenting in West Virginia v. Barnette.

I am setting him in context.

[SRG2]

FWIW according to Jewish tradition, Vashti was commanded to appear at the banquet wearing a crown and nothing else.

[apedad]

(From one Google-search blog.)

If this event actually occurred, we are left to form an opinion as to Xerxes' likely intentions when he called for his wife. If the event is fictional, then we can look at the text to see what the author probably intended.

Bruce Feiler says, in Where God Was Born, page 331, it is known from Persian records that Queen Amestris, Xerxes' only known wife, continued in that role well beyond his third year as king (the date the text suggests Vashti was deposed). This means that Queen Vashti was a literary creation in the Book of Esther, and so we must look at the author's intentions in this passage.

Michael V. Fox (Character and Ideology in the Book of Esther, page 165) says the author of Esther rarely gives motivations for the characters' behaviour but leaves us to infer them from words and actions.

Early Jewish commentaries took opposing views on whether Vashti was instructed to appear nude. Josephus, in Antiquities of the Jews VI.6.1, said nothing about nudity, but that Persian law prevented the king's wife being seen by other men. Later Jewish midrash began to portray both Xerxes and Vashti in a negative light, so decided that Xerxes' command was that she be brought naked, to be paraded wearing nothing but her royal crown (Esther 1:11: 'with the crown royal'). Based on Jewish midrash, it is now commonly supposed that Xerxes commanded his wife to appear nude in front of the drunken men.

[SRG2]

Going to historical sources is going to be a waste of time though because Esther is fiction – not myth, legend, nor tradition. There’s no mention of God, there was considerable debate whether it should be in the Tanakh at all, and, amongst the books of the Tanakh, uniquely it was not to be found in the Dead Sea Scrolls. all pointing to its originally being fiction and understood as such.

Purim is still a fun holiday, though. And I can still recite the names of Haman’s sons off by heart in one breath.

[JoeFromtheBronx]

I don't think it is akin to sci-fi or something. It was historical fiction based on certain historical traditions.

Citing history is of some interest though by the time the Jewish scriptures were written much of the historical events expressed had a limited connection to exactly what happened.

Some translations of Esther felt a need to add a bit more God. God was present in a fashion either way as in general historical force that was on the side of the Jews. Also, the usage of Jewish characters necessarily requires considering the Jewish God.

[SRG2]

The background may be historical but the story itself, highly doubtful.

There are indeed more of less pious explanations for why God isn't mentioned, but the one that the writer might have thought that putting God into a work of fiction was taking his name in vain seems the most plausible to me.

[Commenter_XY]

Purim is my absolute fave holiday! Pure delight and revelry. The day after Purim....maybe not so much. Until the ibuprofen kicks in. 😉

I'm tempted to distill some of my own spirits, using the etrogim from Sukkot.

All ten in one breath? Really? That takes some skill.

[SRG2]

At my boarding school it was a day off, with lots of fun activities. a tug of war across a small stream, etc.

All ten in one breath? Really? That takes some skill.

Not really. Technically, though the minhag requires that you say "chamesh me'ot ish" and then the names all prefixed by the textual "ve-et" and then end with "aseret". It takes no more than ten seconds at most.

Interesting analysis of their names here: https://en.wikipedia.org/wiki/Sons_of_Haman

[The Margrave of Azilia]

If I had to choose a liberal whose views on education were more reasonable, I wouldn’t choose Frankfurter, but John Stuart Mill.

“A general State education is a mere contrivance for moulding people to be exactly like one another; and as the mould in which it casts them is that which pleases the predominant power in the government, whether this be a monarch, a priesthood, an aristocracy, or the majority of the existing generation, in proportion as it is efficient and successful, it establishes a despotism over the mind, leading by natural tendency to one over the body.”

https://www.gutenberg.org/cache/epub/34901/pg34901-images.html

[Dan Schiavetta]

No country ever advanced beyond peonage without a public school system.

[SRG2]

Yes. However, "Unless, indeed, when society in general is in so backward a state that it could not or would not provide for itself any proper institutions of education, unless the government undertook the task; then, indeed, the government may, as the less of two great evils, take upon itself the business of schools and universities,"

[The Margrave of Azilia]

You’re suggesting that American is in that situation? What’s your evidence?

[Malika]

Felix's birthday? Well hot dog!

[JoeFromtheBronx]

Hard to see, looking at things, how the public school system in this country results in people being "exactly like one another."

I grant places like Florida is trying to limit free thought and so forth but that seems to me a violation of public-school ideals.

[The Margrave of Azilia]

"*in proportion as it is efficient and successful*, it establishes a despotism over the mind, leading by natural tendency to one over the body.” [emphasis added]

Thank God the public schools in the U. S. are not exactly models of efficiency and success.

Maybe Mill would have breathed a sigh of relief.

Or maybe he wouldn't have, when he learned of those schools which are keeping information about students from their parents.