Today in Supreme Court History: February 5, 1793

2/5/1793: Chisholm v. Georgia argued.

Comments

[Dan Schiavetta]

Queen v. Hepburn, 11 U.S. 290 (decided February 5, 1813): Marshall holds that while hearsay can support a claim to property (for example as to boundaries) it can’t as to freedom; statements of people who were now dead that ancestor of mother and child petitioning for their freedom came from England and not Africa were properly excluded; Duvall, in his only written dissent in 24 years on the Court, points out that hearsay on this issue is allowed in his home state of Maryland and states: “The reason for admitting hearsay evidence upon a question of freedom is much stronger than in cases of pedigree or in controversies relative to the boundaries of land. It will be universally admitted that the right to freedom is more important than the right of property. And people of color from their helpless condition under the uncontrolled authority of a master, are entitled to all reasonable protection.” Ironically Duvall himself owned slaves, though he had made his reputation winning slaves their freedom. Five of the seven Justices were slave owners, which was the typical situation pre-Civil War.

New Jersey v. Delaware, 291 U.S. 361 (decided February 5, 1934): an original jurisdiction case involving Delaware’s “twelve-mile circle”, centered on the North Castle courthouse; Court agrees with special master that Delaware owns the Delaware River bed within the circle (one sees on Google Maps that the boundary hugs the New Jersey shore); as in most boundary cases, the report has a detailed history of the dispute, going back to Charles II’s grant to William Penn in 1681

People v. Compagnie Generale Transatlantique, 107 U.S. 59 (decided February 5, 1883): New York’s $1 tax on people stepping off the boat is a prohibited regulation of foreign commerce (the “Dormant Foreign Commerce Clause”); New York argues that this is a tax on inspection of imports (to weed out the infected/infirm) as is allowed by art. I, §10, cl. 2, but the Court holds that free persons can’t be “imported”, and the reference to “importation” of “persons” (art. I, §9) referred only to “persons of the African race”

Republic of Mexico v. Hoffman, 324 U.S. 30 (decided February 5, 1945): Mexico, which owned vessel which caused damage to American fishing vessel, did not have immunity from suit where it did not have possession of vessel; Secretary of State could certify such immunity but had not done so

Pacific Telephone & Telegraph Co. v. City of Seattle, 291 U.S. 300 (decided February 5, 1934): city ordinance imposing tax based on telephone company’s gross income in the city not impermissibly vague when exact amounts are computed by city official and not due until then

[A Japanese Student]

Declaratory Judgment Case (Third Petty Bench, decided February 5, 1974): Calculating docketing fees can be a pain in Japan, as it depends heavily on the amount in controversy. Here, the court holds that in a case seeking declaratory judgment (confirming that the plaintiff is the trustee of a hotel), courts should evaluate the amount in controversy based on the profits the hotel has made; the lawsuit was dismissed for failure to pay 10 million yen (about $33,000) in fees

Tort Claims Case (Second Petty Bench, decided February 5, 1982): No compensation necessary for Mining Act provision requiring permission before mining near public buildings; it is a generally applicable rule necessary for public welfare, not a taking (defined by courts as "special sacrifice of property rights imposed against specific persons", i.e. eminent domain)

2017 Tokyo Metropolis Assembly Election Case (Third Petty Bench, decided February 5, 2019): Tokyo encompasses not only the big cities, but also Izu and Ogasawara Islands (aka "Bonin Islands"); here the Court affirms the constitutionality of an electoral district for the insular areas against malapportionment challenge

[John F. Carr]

I've wondered how American practice would differ if high value lawsuits had a correspondingly high filing fee. Would that help deter stupid lawsuits? Would that work injustice? In America neither rich nor poor people care about court fees. The rich can afford them and the poor are excused from paying them. The middle class notices the cost.

[CJColucci]

What would make something a "high value lawsuit" at the time of filing? The amount claimed, which, often being fanciful or at least seriously indeterminate, is easily manipulated to avoid high fees? Some pre-suit "objective" analysis (by the clerk's office?) of what value a suit might have if it succeeded? (Car accident/quadraplegic plaintiff/iffy liability/potentially sky-high damages -- let's charge $X for the filing fee.)

[John F. Carr]

Depending on the jurisdiction the lawsuit may state a dollar amount. My state's law prohibits ad damnum claims in lawsuits except when the damages are easily calculated. Massachusetts General Laws Chapter 231 Section 13B. Courts ask the plaintiff to put the dollar value on a civil claim cover sheet instead. It is needed for assigning cases to the right court and for granting attachment of defendant's assets. The jury doesn't see the number.

Consider the $54 million pants lawsuit. The plaintiff could have been ordered to pay a $54,000 filing fee. He would have gone away instead. Or consider an injured person who needs medical care for life, worth several million dollars. Where is the $10,000 coming from? Do we let his lawyer advance it? Ordinarily a contingency fee contract leaves the client responsible for court costs.

[CJColucci]

So does the filing fee in the pants lawsuit get set at $54,000 just because the plaintiff demanded $54,000,000, or does some filing clerk make a preliminary finding that the case is obvious bullshit and set a $54,000 filing fee to deter filing? And what about a perfectly sound antitrust case that could easily be worth billions? What reason is there to set a high filing fee in meritorious cases just because if the plaintiff wins the recovery will be enormous? Should they be deterred?

[A Japanese Student]

In Japan, you must state the amount you want to recover in the complaint. The court cannot order anything more than that amount.

In cases not seeking monetary relief, yes, it can be a pain to calculate the amount. That case says a judge may determine the amount. In cases not arising from property rights (say, divorce or injunctions against the Government), the amount in controversy is statutorily set to be 1.6M yen, and the filing fee is 13,000 yen (currently around $85).

[Drewski]

What if you need discovery to determine damages? Like if your damages are for unjust enrichment.

[A Japanese Student]

Probably by amending the complaint as necessary.

[Syd Henderson]

2017 Tokyo Metropolis Assembly Election Case sounds to me a bit like declaring Nantucket and Martha's Vineyard part of Boston. The Bonins are quite a ways from Tokyo proper. I presume there are historical reasons?

[Stupid Government Tricks]

Sounds more like declaring the US Virgin Islands part of the District of Columbia.

[A Japanese Student]

Yeah, like that.

Although not a constitutional requirement, every land in Japan has to belong to one of the 47 prefectures. Tokyo, being most populous, simply has more resources that they can allocate to insular regions.

[Syd Henderson]

Thanks. I wasn't sure of Tokyo's status, but it would make sense if they were considered a prefecture. Tokyo does seen a reasonable choice.

[JoeFromtheBronx]

Chisholm v. Georgia involved a repeated concern: the payment of debts, including by state legislatures.

The Constitution, including its creation of federal courts with broad power to settle disputes, was passed partially to safeguard the payment of debts. States could not impair contracts. They could not authorize paper money to pay off debts. That could allow payment of pennies on the dollar.

So, this seemed a good case for Chisholm. The other concern was state power. Madison, Hamilton, Marshall, and others assured people that -- though the text and overall meaning of the document might imply otherwise -- states won't be sued without their consent.

Georgia didn't even send someone to argue the case. Nonetheless, the Court decided 4-1 that Chisholm could sue. This led to the ratification of the 11th Amendment basically to choose one understanding of the original understanding.

The dissenter argued there was a common law right to state sovereignty. The Supreme Court didn't have inherent jurisdiction to take the case. Interestingly, there is a possible argument that Congress could override the common law immunity. It didn't but it might. Justice John Paul Stevens later took that approach regarding the correct holding of this case.

Chief Justice Marshall is known for his broad support of national power. On this question, however, he might have taken the approach of the dissent partially since it would have been prudent as shown by the response.

The bottom line is that if people in 1793 so greatly split on a major constitutional question, maybe originalism is somewhat dubious.

[Stupid Government Tricks]

There's an even bottomer line.

The bottom line is that if people in 1793 so greatly split on a major constitutional question, maybe originalism is somewhat dubious.

Maybe the Rule of Law is a figment of the imagination, since interpretation of laws always comes down to men. Maybe the Rule of Law is a fig leaf covering the naughty idea that lawyers are the proper interpreters of Law.

[CJColucci]

And the alternative is.......?

[Stupid Government Tricks]

It could start with not lying that Rule of Law exists, or is objective, neutral, etc.

[Purple Martin]

Hmmm...let's see...[flipflipflip] "b..." [flipflipflip] "be..." [flipflipflip] "begg..." [flipflipflip] ahhh, here it is:

Begging the Question: to ignore a question under the assumption it has already been answered. See: Stupid Government Tricks...

[jdgalt1]

If we interpret the Rule of Law as including the Rule of Lenity, then we have a bright line standard, one we could and should always follow. But no court, to my knowledge, aspires to that level of consistency, since it could lead to plenty of unemployed lawyers. Waaah!

[JoeFromtheBronx]

"The rule of law is a durable system of laws, institutions, norms, and community commitment that delivers four universal principles: accountability, just law, open government, and accessible and impartial justice."

https://worldjusticeproject.org/about-us/overview/what-rule-law

The "rule of law" is a set of principles. They are applied by people. Lawyers play a significant but not the only role.

[Stupid Government Tricks]

"Applied by people"

Glad you confirm it's Rule by Men.

[Drewski]

This might be the worst of Mr. Bumble's accounts.

[JoeFromtheBronx]

state sovereign immunity

James Wilson in his separate opinion -- each justice of the majority followed the original practice of separate opinions -- noted:

To the Constitution of the United States, the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. But even in that place, it would not, perhaps, have comported with the delicacy of those who ordained and established that Constitution. They might have announced themselves "SOVEREIGN" people of the United States. But serenely conscious of the fact, they avoided the ostentatious declaration.

As I noted, others had different ideas, and we still have people quite passionate about state sovereignty and state sovereign immunity. I think Wilson had a point.

[SMP0328]

The Federalist Papers had assured the States that Article III implicitly included defenses a State would have in its own courts. In Chisholm v. Georgia, Chief Justice Jay and Justice Wilson rejected the notion that the States could be sovereign, must less be immune from federal suit. Justices Blair and Cushing took a strictly textualist approach, saying that when Article III refers to suits involving States it doesn't limit that reference to only suits where a State is a plaintiff and so it must include suits where a State is a defendant. Justice Iredell, in dissent, was the only Justice to refer to the Federalist Papers' assurance.

The States felt they had been double-crossed and feared they would be sued into bankruptcy by creditors trying to collect on Revolutionary War debts. These led to the adoption of the Eleventh Amendment.

[JoeFromtheBronx]

Jay wrote a few Federalist Papers and might have written more if health problems didn't interfere.

The people didn't all rely on 85 op-ed essays as the official meaning, including in the states which ratified before the essays covering this one issue (of many) were published.

Did they feel "double-crossed" when Hamilton changed his mind from his FS position on the removal power? A few did but then that goes to show you the limits of op-eds that spun the evidence in a certain direction.

James Wilson and John Blair were constitutional framers. Chisholm's attorney was Edward Randolph, another framer. Cushing and Jay served on the state ratifying conventions.

The states did feel the potential of a perfectly reasonable application of the text was dangerous given their interests. Thus, the 11th Amendment was ratified.

[F.D. Wolf]

The fact that the Congress and the state legislatures moved so quickly to overturn the decision via the Eleventh Amendment indicates that there wasn't much of a "split" of opinion at all on the constitutional question. The vote in the House was 81-9; the vote in the Senate was 23-2. The five members of the Supreme Court, all appointed by the same man, hardly represented a cross-section of constitutional thought in the country.

[David Nieporent]

It might indicate that there wasn't much of a split of opinion as to what the law should be, but it doesn't give any indication about what people thought about what the constitution actually did say.

[F.D. Wolf]

Your assertion might be plausible if more than six years had elapsed between the drafting of the Constitution and the decision in Chisolm, and it were not much the same men responsible for the drafting and ratification of the original Constitution who also drafted and ratified the Eleventh Amendment. The Court's reading of the Constitution in Chisolm is precisely the opposite of what Hamilton said in Federalist 81:

It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the union. Unless therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the states, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of state sovereignty, were discussed in considering the article of taxation, and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no colour to pretend that the state governments, would by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will. To what purpose would it be to authorise suits against states, for the debts they owe? How could recoveries be enforced? It is evident that it could not be done without waging war against the contracting state; and to ascribe to the federal courts, by mere implication, and in destruction of a preexisting right of the state governments, a power which would involve such a consequence, would be altogether forced and unwarrantable.

I submit that was the near-universal understanding of those that wrote and ratified the document, who would not have done so if they felt states could be sued by individuals in federal court.

But I leave it to others to decide for themselves which is the more likely possibility:

A.) At the time of the drafting and ratification of the Constitution, there was a substantial split of opinion on the question of whether states had surrendered, but six years later when someone did purport to sue a state in federal court, most everyone decided that the Constitution should be amended as not to allow it, apparently including the significant portion of the "split opinion" who believed the original Constitution permitted it; or

B.) Members of Congress and the state legislatures, many of whom had been responsible for the drafting and ratification of original Constitution all of six years earlier, were so SHOCKED by the Court's assertion that the Constitution had abrogated the state's sovereignty and allowed individuals to haul them into federal court, that, with breakneck speed and near-unanimity, moved to reverse the Court's decision.

[jdgalt1]

If you read the text of the 11th Amendment, though, it does not exempt the states from all suits by individuals. It only restricts suits where the plaintiff is (a) a non-US citizen or (b) a citizen of the US who does not live in the defendant state. And even these categories of plaintiffs may sue the state in its own courts, just not in the federal courts.

So I would expect a state that failed to pay its debts would still be sued federally by its own residents who bought the bonds.

[JoeFromtheBronx]

The presiding officer of the Constitution Convention, with the help of people like Hamilton, chose a regionally diverse collection of leading minds [one was chosen to co-write the Federalist Papers though illness led him to write only a few; another, James Wilson, was a greatly respected legal mind & his defense of the Constitution was more influential than many others] who were framers and ratifiers of the Constitution to be the first set of Supreme Court justices.

I do not claim this was a full reflection of the varying minds of the public at large. All the same, if I wanted a reasonable understanding of a significant subset, they would be rather useful. And, this subset had a nearly united view on the ultimate decision. The handwaving is a tad telling.

The passage of the Eleventh Amendment, a compromise text deemed warranted by the response of the ruling, that amended the Constitution, doesn't erase that there was a significant debate over the question. And, what the 11A specifically covered itself was debated, with Marshall later applying it more narrowly than another faction thought warranted.

[F.D. Wolf]

I will just repeat my comment above that if most of the men who voted to ratify the Constitution would not have done so if they had the slightest inkling that a state could be hauled into federal court by an individual without its consent - a possibility vehemently denied by Hamilton in Federalist 81. (Recall the Federalist was largely a response to arguments put forth against ratification, such as this one.)

While the idea of defending state sovereignty doesn't stir much passion today, you better believe it did in 1787, and for quite a few years after that, culminating, of course, in a great Civil War.

[With Trump in, "now Lord you can let your servant go in peace"]

Under Biden the State was always right --except when it disagreed with Biden. Let's bring back true federalism, natural law, and "states as laboratories of democracy"