Today in Supreme Court History: January 18, 1873

1/18/1873: Bradwell v. Illinois argued.

Comments

[Dan Schiavetta]

Mistretta v. United States, 488 U.S. 361 (decided January 18, 1989): The Sentencing Reform Act of 1984 created the Sentencing Commission (appointed by the President w/Senate approval, three of seven members being federal judges) which sets binding guidelines. Here the Court holds that this arrangement does not violate separation of powers nor is an excessive delegation of authority by Congress. (The Court says, “Congress decided to locate this Commission in the Judicial Branch”, quoting the official site, http://www.ussc.gov. What does that mean exactly? The Chief Justice is the head of the Judicial Branch and the Commission doesn’t report to him. It seems to be Executive Branch, no matter what anyone says.)

Golan v. Holder, 565 U.S. 302 (decided January 18, 2012): Copyright Clause allows Congress to give copyright protection to works formerly in public domain (as part of a reciprocity arrangement; these works enjoyed copyright protection in their countries of origin) (suit was brought by conductors, orchestras, publishers) (my cash-poor amateur orchestra is forced to play only old works because only they can be downloaded free)

Missouri v. Iowa, 165 U.S. 118 (decided January 18, 1897): Boundary between Iowa and Missouri had to be redrawn because the original markers couldn’t be located. One had been described as being between two trees (an oak and an elm) which had fallen. A long report from the special master showing efforts to find markers from 1850 and interpret mysterious “blaze” marks left on trees, which are illustrated in the decision. (Someone mischievously inclined could have put in false markers misleading the field investigators so that the border, instead of being a straight line, formed a profile of a naked woman lying on her back, with breasts extending north to Bloomfield, Iowa and knees poking up to Mt. Ayr, butt curving down to Mercer, Mo.; depicting a naked man would be a little simpler.)

Moyer v. Peabody, 212 U.S. 78 (decided January 18, 1909): In 1903 the Governor of Colorado called out the National Guard to break miners’ strike and arrested Moyer on the basis of “military necessity”. Here the Court affirms dismissal of Moyer’s suit; the Governor’s claim of “insurrection” cannot be questioned and Moyer had no redress in the judicial system against a use of police powers. (In other words, Moyer would have to resort to violence . . . )

Maples v. Thomas, 565 U.S. 266 (decided January 18, 2012): habeas allowed despite blowing deadline on state court appeal where defendant’s attorney flew the coop without telling him

[SRG2]

In Golan, Breyer has the better of the argument in dissent.
https://supreme.justia.com/cases/federal/us/565/302/#top

In order “[t]o promote the Progress of Science” (by which term the Founders meant “learning” or “knowledge”), the Constitution’s Copyright Clause grants Congress the power to “secur[e] for limited Times to Authors . . . the exclusive Right to their . . . Writings.” Art. I, §8, cl. 8. This “exclusive Right” allows its holder to charge a fee to those who wish to use a copyrighted work, and the ability to charge that fee encourages the production of new material. In this sense, a copyright is, in Macaulay’s words, a “tax on readers for the purpose of giving a bounty to writers”—a bounty designed to encourage new production. As the Court said in Eldred, “ ‘[t]he economic philosophy behind the [Copyright] [C]lause . . . is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.’ ” Eldred v. Ashcroft, 537 U. S. 186 , n. 18 (2003) (quoting Mazer v. Stein, 347 U. S. 201, 219 (1954) ). See T. Macaulay, Speeches on Copyright 25 (E. Miller ed. 1913); E. Walterscheid, The Nature of the Intellectual Property Clause: A Study in Historical Perspective 125–126 (2002) (hereinafter Walterscheid).

The statute before us, however, does not encourage anyone to produce a single new work. By definition, it bestows monetary rewards only on owners of old works

Meanwhile the syllabus clearly gets it wrong here:

Petitioners also urge that the Government’s position would allow Congress to legislate perpetual copyright terms by instituting successive “limited” terms as prior terms expire. But as in Eldred, such hypothetical misbehavior is far afield from this case.

It's hypothetical in that it's not happened. But where Congress has shown a consistent pattern of allowing one waffer-thin mint more extension at a time, Congress is legislating as if it will continue to extend copyright.

[Dan Schiavetta]

Thanks.

(That's why I don't read the syllabus, just the opinion.)

[Dr. Ed 2]

I never thought I would live to see Mickey Mouse in the public domain.

But what I wonder about here are lawful copies of public domain works being made private and both the due process and taking clauses. Can a treaty violate the 5th Amendment?

I.e. I have a lawful copy of a piece of music (property) that Congress has made unlawful. How am I to know that, and why isn't this a taking?

[David Nieporent]

What are you talking about? Reviving the copyright does not make your copy "unlawful."

[Drewski]

In ratifying the convention, Congress built safeguards to avoid 5A issues. People who were already relying on formerly-public-domain works were given concessions under the law. At a bare minimum they got a year of free use after the copyright was restored and they received notice of intent to enforce.

[A Japanese Student]

There are many agencies located in the Legislative Branch, like the Copyright Office, Government Publishing Office, and Architect of the Capitol. Some have Senate-confirmed leadership; some are appointed by Congress (like AOC) or other Senate-confirmed director (like USCO, overseen by Librarian).

I doubt the difference in branches have material difference. USSC is presumably subject to Humphrey's Executor. Plus, the sentencing guidelines no longer bind judges the same way statutes do.

[Dan Schiavetta]

Yes, true. Thanks!

[Drewski]

I just want to say I'm glad to see a new person commenting knowledgably and regularly here, and even without constantly engaging in partisan bickering and personal attacks like I do. It's a breath of fresh air.

[Dan Schiavetta]

My thoughts exactly. Welcome, Japanese Student!

[Dr. Ed 2]

Prior to their temple being built in the 1930s, didn't the USSC physically live in the Capitol, space under the authority of Congress?

And in the late 1960s the Federal Govt built a lot of 3-6 story "Federal Buildings" that had the US Post Office on the 1st floor, the US Courts on the top floor(s), and GSA-assigned Federal office space in the middle including local offices of Congresscritters.

Bangor, Maine had one out on Harlow Street -- the Post Office has moved but everyone else is still out there, including Senators Collins & King. So all three branches there in Executive Branch space.

[Noscitur a sociis]

Yes, there are and have been many buildings that house multiple federal agencies.

What conclusion are you suggesting should be drawn from that?

[A Japanese Student]

I believe Golan mostly impacted works placed in public domain under 2 procedural requirements: the requirement to put "Copyright (year) (author)" on the work (applicable to pre-1977 works), and the requirement to renew copyright (applicable to pre-1963 works). Importantly, almost all other countries lacked those requirements.

[JoeFromtheBronx]

I think realistically we are left with what the statute and court said as to the sentencing commission but the "reporting to the Chief Justice" does not seem determinative. It isn't a unitary judiciary thing.

[Noscitur a sociis]

It seems to be Executive Branch, no matter what anyone says.

Seems like a problem if so, since 1. Judges serve on it and 2. The president has no authority over it.

[The Margrave of Azilia]

"(The Court says, “Congress decided to locate this Commission in the Judicial Branch”, quoting the official site, http://www.ussc.gov. What does that mean exactly? The Chief Justice is the head of the Judicial Branch and the Commission doesn’t report to him. It seems to be Executive Branch, no matter what anyone says.)"

Who are you going to believe, the Court or your lying eyes?

[Alpheus W Drinkwater]

I don't know about believing, but you certainly can't hide them.

[Not a Conservative but a Biden LOATHER]

Here's why all readers should get the Heritage Guide to the Constitution

More recently, the Supreme Court under William Rehnquist made clear that there would be no revisiting the abandonment of non-delegation. In the case of Mistretta v. United States, the Court upheld the statute that delegated to the U.S. Sentencing Commission the power to set sentences (or sentencing guidelines) for most federal crimes. If any case were going to constitute grounds for non-delegation review, it would have been this one. Congress created the Sentencing Commission as, essentially, a temporary legislature with no purpose other than to establish criminal penalties and then to go out of existence.[61] But Mistretta simply served as confirmation that the federal courts were not going to bring the legitimacy of the administrative state into question by resurrecting the separation of powers."

[SRG2]

https://www.heritage.org/the-constitution/heritage-explains/the-heritage-guide-the-constitution

All that's missing is that painting of Jesus handing out the DoI:

It is also the shortest constitution, and therein lies its brilliance. Rather than concoct a detailed recipe covering every possible eventuality, the Founders instead provided a structure and articulated a set of stable principles that provide a timeless guide for good governance, enduring and worth preserving. It remains the object of reverence for nearly all Americans and an object of admiration by peoples around the world.

How very seppoid.

[Dan Schiavetta]

I wonder how the Heritage Foundation explains that the individual mandate, which they formulated, proposed and pushed for, suddenly became unconstitutional when Obama decided to agree to it as the centerpiece of the Affordable Care Act.

[Michael P]

You're not very curious, are you?

And third, in the legislation we helped craft that ultimately became a preferred alternative to ClintonCare, the "mandate" was actually the loss of certain tax breaks for those not choosing to buy coverage, not a legal requirement.

https://www.heritage.org/health-care-reform/commentary/dont-blame-heritage-obamacare-mandate

[bernard11]

And yet there's not a dime's worth of difference between the two formulations.

How does having to pay an extra tax differ from losing a tax break?

[Frank Drackman]

So "Affordable" most peoples need Government handouts to pay for it, and Congress tried to exempt themselves from it.

[Malika the Maiz]

Which peoples don’t need Them? Finns and Brits?

[Dr. Ed 2]

The co-pays are beyond the means of many people, hence insurance in name only.

[Malika the Maiz]

Whoosh!

[Not a Conservative but a Biden LOATHER]

That would be a problem if it were true. IT IS NOT
Poster has 3 errors
It's all here , folks
Don't Blame Heritage for ObamaCare Mandate
https://www.heritage.org/health-care-reform/commentary/dont-blame-heritage-obamacare-mandate

[Malika the Maiz]

That’s the same article.

[A Japanese Student]

Aside from all the policy arguments, it makes no sense to compare documents written in different languages by word count. (For example, the official English translation of Constitution of Japan has almost 5000 words, while Japanese version has roughly 7800 according to one counter I used.) Also note that most constitutions came with bill of rights from its inception; I doubt that the number Heritage checked includes amendments.

[Dr. Ed 2]

Article I, Section IX of the main text is a Bill of Rights -- the actual Bill of Rights (15 were proposed, 10 enacted) were added due to concerns by the Anti-Federalists who thought they needed to be explicitly stated.

By contrast the Federalists thought they were so well implied and so well established that there was no need to. The religion clause of the First Amendment is a good example of this with it so being universally known (then) that this was a Christian nation that there was no need to state that. (Each state had an established church and the fear was that Congress would impose another state's denomination on *all* states.)

Remember that none of the bill of rights applied to the states treatment of its citizens until the 14th Amendment, although *states* had Constitutions which also had bills of rights.

E.g. https://malegislature.gov/Laws/Constitution

That's the Massachusetts State* Constitution which was written by John Adams and took effect in 1780 about a decade before the US Constitution and arguably was a model for it. Note the "all men are born free" clause -- that ended slavery in MA and hence does NOT appear in the Federal one written in 1787.

----
*Massachusetts, Pennsylvania, Virginia, and Kentucky are not States -- instead they are Commonwealths. MA, PA, & VA predate the Revolution, not sure how KY was able to become one.

IGNORE THIS and call them "States", as far as you are concerned, it doesn't matter. Louisiana also once was more of a French system than British one -- just know that.

[Not a Conservative but a Biden LOATHER]

Not really germane since in the US Constition every right was already in a State Constitution of which there were about 20 by the time of the Federal Constitution. This was a contribution of Prof Donald S Lutz

[Malika the Maiz]

[Dr. Ed 2]

There were only 13 states in 1789, with Vermont being admitted in 1791 and Kentucky in 1792. Not sure where the "about 20" comes from.

[Syd Henderson]

The Star Spangled Banner at Fort McHenry had fifteen stripes and fifteen stars (they limited the number of stripes to thirteen in 1818). They didn't change the flag from 1792 till after the war of 1812 By the war of 1812 there were eighteen states (Tennessee in 1796, Ohio in 1803, Louisiana in 1812) so the number of stripes would have been getting unwieldy. Two more states (Indiana in 1816 and Mississippi in 1817) were admitted until Congress decided to make it thirteen stripes and twenty stars. That flag was almost immediately obsolete with four more states (Illinois later in 1818, Alabama in 1819, Maine!! in 1820, and Missouri in 1821) in the next three years, then things calmed down until Arkansas 1836 and Michigan 1837, after the latter settled the Toledo War with Ohio.
This was the period when they were admitting states as pairs to keep an even number of slave and free states.

If the wikipedia page is right, the Star-Spangled Banner was a square flag.

[Not a Conservative but a Biden LOATHER]

This is maybe in the top 3 contested Constitutional issues.

https://www.youtube.com/watch?v=AMEGBd-xWbw

The Fourteenth Amendment and the Privileges and Immunities of American Citizenship Prof KURT T LASH

. But rather than eradicate state autonomy altogether, the people embraced the Fourteenth Amendment that expanded the protections of the Bill of Rights and preserved the Constitution's original commitment to federalism and the principle of limited national power.

[JoeFromtheBronx]

The 14A "expanded the protections of the Bill of Rights and preserved the Constitution's original commitment to federalism and the principle of limited national power."

This can be at cross purposes. The expansion of the BOR expanded the power of the federal government both with congressional and federal judicial enforcement. The ultimate proof is in the pudding -- "federalism" is a division of power and how it is divided is the ultimate question.

As to the 9A, the amendment provided a general concept of rights being open-ended, not limited to the ones especially cited. Many state constitutions had a similar principle.

The "privileges or immunities" of citizenship, for instance, was not understood to be solely those enumerated in the Constitution such as the first eight amendments and habeas corpus.

Kurt Lash also provides the limited nature of original understanding. You have let's say a sixty-page article (or whatever the length is) filled with stuff that other scholars debate.

[SRG2]

You have let's say a sixty-page article (or whatever the length is) filled with stuff that other scholars debate.

Because the shorter the original law, the greater the amount of discussion about the things the law didn't specify, define, or accidentally omitted.

[Mr. Bumble]

So "the thing itself speaks" doesn't apply to laws?

[SRG2]

So "the thing itself speaks" doesn't apply to laws?

?

This is the kind of thing: "All vehicles shall be equipped with seat belts." Clear, right? Except - is a bicycle or motorbike a vehicle? Does "equipped" necessarily imply "and positioned so that they can be worn" or is having seatbelts supplied with the standard emergency kit count?

OK, "all vehicles with four wheels shall have seat belts fitted in locatons allowing them to be worn", etc. Man is pulled over for his car not having a seat belt. "But my car has five wheels. Four wheels on axles, and a fifth wheel as a spare." If the law had said, "all four-wheeled vehicles" - different matter. Now you may say, of course the legislature meant four wheels on the road - but if you're relying on the text, you can't argue with it, and if you have to say, well, this is obviously what the legislature meant - why, you're now supplying comment and discussion.

Etc etc,

Now do you understand? And you can't say, well, people should use their common sense about what the law means" because that too leads to uncertainty and the courts don't necessarily agree on what is common sense.

[David Nieporent]

"No vehicles in the park."

[Not a Conservative but a Biden LOATHER]

The original law had the length the Founders deemed made the point optimally. They wanted discussion. But until you acknowledge the natural law background you make even the Declaration to be purely rhetoric. This is why Lincoln is the master interpreter of the Constitution. He knew it was the working out of the equality of men, their rights given by the Creator.

[Malika the Maiz]

Not a conservative indeed!

[SRG2]

their rights given by the Creator.

which cannot be relevant as there is no mention of the Creator nor that rights emanated from it. And this omission must have been deliberate.

[Malika the Maiz]

I’m old enough to remember when conservatives decried incorporation as judicial supremacy expanding federal power over state’s rights.

[Dr. Ed 2]

It was. Why the 11th Amendment?

[Dan Schiavetta]

The 11th Amendment simply corrected an oversight in Article III, which allowed a citizen to sue a state in federal court.

[Not a Conservative but a Biden LOATHER]

Well it is.
Federalist Society has a post right now
Incorporation through the Privileges or Immunities Clause

" According to Justice Thomas, incorporating the Bill of Rights against the states via the Privileges or Immunities Clause not only more faithfully adheres to the original meaning of the text, it would also better preserve the freedoms enshrined in the Constitution, as such analysis would likely be more grounded in history and tradition than substantive due process, which lacks “a guiding principle to distinguish ‘fundamental’ rights that warrant protection from non-fundamental rights that do not.”"

[Dr. Ed 2]

No.

The victorious Northern states wrote it to apply to the Confederate states without realizing that it would apply to them as well.

But the war had weakened states and created a stronger Executive Branch in DC, and we soon had railroad consolidation to the point where we had interstate railroads. Standardized time arrived in 1883.

[David Nieporent]

The victorious Northern states wrote it to apply to the Confederate states without realizing that it would apply to them as well.

No matter how many times you say this fucking stupid thing, it does not get less fucking stupid. They did, of course, know with 100% certainty that it would apply to them as well.

[Stupid Government Tricks]

Bud, apply a little intelligence when you read. Of course they knew it applied to them in a literal legal sense. But just as Dr Ed 2 says, it never occurred to them or Southerners or anyone that it would apply in the 2024 sense.

Just because you despise Dr Ed 2 and think yourself superior doesn't mean you really are.

[David Nieporent]

Um, try reading what he actually wrote. He's not arguing that the 14th amendment has different effects than people contemplated in 1868. He's arguing that they thought it would only apply to the Southern states.

[Not a Conservative but a Biden LOATHER]

"In short, there is good reason why John Bingham and Jacob Howard would leave the Ninth Amendment off their list of personal rights protected by the Privileges or Immunities Clause. This amendment was not understood as a fount of unenumerated personal rights. It, like the Tenth Amendment, represented a declaration of the reserved powers and rights of the people in the several states. Efforts to rely on the Ninth Amendment as somehow supporting an unenumerated rights reading of the Privileges or Immunities Clause cannot be supported in light of the actual historical evidence."

[SRG2]

Lash's paper here: https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=4883&context=ndlr

[Hugo S. Cunningham]

This "power of States" reading of the Ninth Amendment reminds me of the claim that the Second Amendment applies only to National Guard armories.

[JoeFromtheBronx]

Myra Bradwell eventually was admitted to the bars of Illinois and the Supreme Court though never practicing law.

https://www.supremecourt.gov/visiting/exhibitions/LadyLawyers/section1.aspx

Bradwell v. Illinois is often quoted for a statement about how women are naturally unfit for the practice of law. The quotation is from a three-justice concurrence.

The main opinion followed the limited approach of the Slaughterhouse Cases regarding privileges or immunities protected by the 14th Amendment. The dissenters had to use another approach. Chief Justice Salmon Chase was the sole justice dissenting in both cases. He was too ill, however, to write a dissent.

[The Margrave of Azilia]

Indeed, sometimes I hear the three-justice concurrence cited as if the sexist Supreme Court said it.

Chief Justice Chase, by coincidence, happened to have a clever daughter who worked hard to promote his political career.

[A Japanese Student]

One of today's Supreme Court of Japan case is about copyright:

Maneki-TV Case (Third Petty Bench, decided January 18, 2011): "Right to make transmittable" (i.e. copyright) infringed by a company "borrowing" users' TV gateways (capable of relaying TV signals over the Internet) so that users can watch TV overseas; although each gateway device is used only by the lending user, it is still "public transmission" because the company offered its service to the public

Judgment Enforcement Case (Second Petty Bench, decided January 18, 2019): Service of foreign judgment not necessary for enforcement in Japanese courts, but courts must instead evaluate if the defendant was given notice of it; original suit was filed in CA state court, counsel withdrew, defendant didn't appear and was issued default judgment (In Japan, the appeal clock starts when the party is served)

[Stupid Government Tricks]

Maneki-TV sounds like the US company Aereo, which opened in 2012 and shut down in 2014 for pretty much the same reason, individual dedicated aerials notwithstanding.

[Malika the Maiz]

A case of trying to restrict people to “natural” and traditional gender role. The more things change….

[JoeFromtheBronx]

The main opinion didn't rest on that ground.

If a state denied men the right to practice law, its reasoning would also hold. The concurrence, with a wider understanding of the reach of the 14th Amendment, rested on the natural order of things.

[Malika the Maiz]

I was speaking to the policy being challenged.

[JoeFromtheBronx]

Thanks

[Commenter_XY]

https://legalinsurrection.com/2025/01/u-rochester-reportedly-expelled-four-students-involved-in-antisemitic-wanted-poster-controversy/

I am satisfied. I do wonder if they can face harassment charges under NY state law.

[Dr. Ed 2]

Apparently they are:

"...also charged with second degree criminal mischief, a class D felony, by the Monroe County district attorney’s office.

The expulsions are the culmination of that code of conduct process; the criminal proceedings against the students are ongoing, with the four charged next expected in court Feb. 4..."

[Dr. Ed 2]

"Moyer v. Peabody" is why Governors once served 2-year terms -- it caused problems as states grew but there were advantages...

[F.D. Wolf]

The governors of New Hampshire and Vermont still serve two-year terms. (The term is four years in all other states). Fifteen states, at various times in their histories, have had governors serve one-year terms. In New York, the governor initially served a three-year term, which was changed to two years, then back to three, then back to two, before changing to the current four-year term in 1938.

[JoeFromtheBronx]

Since there is no separate 1/19 entry yet, I will just note that two years ago, SCOTUS dropped the investigatory report on the Dobbs leak.

Noting that providing it is not a statement of agreement with all the commentary, this link has some helpful information:

https://davidlat.substack.com/p/the-supreme-court-speaks-on-the-big

[Dan Schiavetta]

Patsone v. Pennsylvania, 232 U.S. 138 (decided January 19, 1914): upholds statute prohibiting foreign born non-citizens from killing wild game except in defense of person or property (this case has never been overruled)

NASA v. Nelson, 562 U.S. 134 (decided January 19, 2011): upholding NASA regulation requiring even long-term employees to submit to background checks and answer questions about illegal drug use (“if there is a right to private information, it is not violated here”)

United States v. Mueller, 113 U.S. 153 (decided January 19, 1885): builder of new customs house in Chicago entitled to delay costs incurred due to government dithering as to building design

Oyama v. California, 332 U.S. 633 (decided January 19, 1948): leaves in place California statute which in effect prohibited those of Japanese ancestry from owning land, with the result that a father’s gift to his son was invalidated and the land went to the state (majority opinion relies on father’s failure to make some formal filings, but c’mon . . .) (statute soon struck down by the California Supreme Court, Sei Fujii v. State, 1952)

Presley v. Georgia, 558 U.S. 209 (decided January 19, 2010): Sixth Amendment right to public trial includes access to jury selection

[John F. Carr]

In Patsone v. Pennsylvania the court implied that pistols deserve more legal respect than long guns. Pistols are useful for self defense.

[Dan Schiavetta]

No, Holmes was only stressing the close match between the protection of wildlife and the weapons named in the statute (rifles and shotguns). I hardly think he would look more critically at a statute involving foreigners using pistols (which are designed to shoot people).