Today in Supreme Court History: April 13, 1896

4/13/1896: Plessy v. Ferguson argued.

Comments

[not guilty]

Donald Trump has never identified which era that he speaks of as America having been "great." Are the days of "separate but equal" de jure racial segregation what the MAGA crowd wishes to return to?

[Frank Drackman]

Way to start off the week with a cheerful non-divisive comment NG, but as "SBE" was a product of the DemoKKKrat Party, I'd say "No", and it's your party who's trying to let a Ham-Ass Gauleiter keep his "Green Card" (A Judge said he can be deported, why is he still here?) I actually think the 90's were a pretty good Decade.

Frank

[not guilty]

I'm sorry to be so dense, but who the hell is "SBE", and to what "Ham-Ass Gauleiter" do you refer?

[Frank Drackman]

"Separate But Equal", sorry, fell back on the SEC Foo-bawl practice of referring to Head Coaches by their initials (UGA coached by KPS, Auburn by DHF, Alabama by KDD etc)
The Ham-Ass Gauleiter is Mahmoud Khalil.
and sorry not to be dense, but what does "MAGA" stand for?
no, not the accepted meaning, a joke one, I'm thinking
"Make Africans go Away"

Frank

[not guilty]

Sorry, I had a senior moment regarding "SBE."

But you are wrong about the partisan makeup of the Supreme Court. Plessy v. Ferguson, 163 U.S. 537 (1896), was a 7-1 decision, with Justice David J. Brewer not participating. The justices in the majority and the Presidents who appointed them were:

Melville Fuller, Chief Justice (Cleveland)
Stephen J. Field (Lincoln)
Horace Gray (Arthur)
Henry Billings Brown, the author of the opinion of the Court (B. Harrison)
George Shiras Jr. (B. Harrison)
Edward Douglass White Jr. (Cleveland; later appointed as Chief Justice by Taft)
Rufus Peckham (Cleveland)

The first John Marshall Harlan, who dissented in Plessy, was nominated by President Hayes.

[Malika the Maiz]

Which party is fighting to keep honoring Confederate and KKK leaders these days?

But you can’t expect someone who writes like a third-grader to get nuances like this.

[Frank Drackman]

Barry Osama is the last POTUS I remember going to a Grand Kleagle's funeral

[Malika the Maiz]

Laughably pathetic. Byrd had left the Klan for over 50 years when Obama went to his funeral. Which partyis currently pushing to maintain honorifics for Confederates and Klansmen?

[Stupid Government Tricks]

Which side wants mandatory segregation in university dorms?

[Frank Drackman]

(Andy Rooney Voice) 'Didya eva notice that most of the Punters and Place Kickers on the Historically Black College & University Foo-bawl teams are white guys? Is there no place to kick a Foo-bawl in the Ghetto?"

[Malika the Maiz]

Have you ever noticed Frank is a fool?

[A Woman of No Importance]

Not the Democrats. See Malika's comment below.

[Malika the Maiz]

Which? Tell us, Stupid

[John 4]

Do you ever read your posts back to yourself and think, “God damn, I sound like an absolute fool”?

[A Woman of No Importance]

I doubt it, because that would require far more self awareness than Drackman seems capable of.

[Dan Schiavetta]

Mute Drackman. I did it long ago. 2 Timothy 2:16

[Magnus Pilatus, MBA, MD, JD, PhDx2]

Someone quickly award Dan his Good Boy Points! Sarcastr0, can you do it?

[A Woman of No Importance]

Do you typically ridicule people for doing the right thing?

[Mr. Bumble]

Your handle speaks volumes.

[Malika the Maiz]

Says Mr. Bumble!

[A Woman of No Importance]

That's kind of rich coming from someone whose own handle was a petty crook.

[Frank Drackman]

If we're gonna lay down some verse, try some John 4:11 (Bee-otch, oh wait, you've got me on "Mute" you can't hear)
but I won't be a prick and act like everyone should know it already,
"Speak not evil one of another, brethren. He that speaketh evil of his brother, and judgeth his brother, speaketh evil of the law, and judgeth the law"
So got that? and go (redacted)-eth your self

Frank

[A Woman of No Importance]

He wasn't speaking evil of you. He was speaking evil of your babblings. Yet another distinction too subtle for you to draw I suppose.

[Frank Drackman]

You sound like Mrs. Drackman when I was trying to get her to go out with me, according to her, I was Arrogant, an A-hole, Abrasive, Aggravating, Annoying, and that was just the "A"'s but like Senator Poke-A-Hontas, I nevertheless "persisted" and 69th time was the charm.

Frank

[Mr. Bumble]

You cunninglinquist.

[Malika the Maiz]

He’s talking about trying to get his mom to go out with him to prom.

[Frank Drackman]

That was my sister

[A Woman of No Importance]

The difference is that today the Democrats have repudiated what the Klan stood for whereas the Republicans have embraced it. I think what is happening today is more relevant than what happened 100 years ago.

And this is from Robert Byrd's autobiography:

In his autobiography, Byrd wrote that he had become a KKK member because he

“was sorely afflicted with tunnel vision—a jejune and immature outlook—seeing only what I wanted to see because I thought the Klan could provide an outlet for my talents and ambitions. ... I know now I was wrong. Intolerance had no place in America. I apologized a thousand times ... and I don't mind apologizing over and over again. I can't erase what happened … it has emerged throughout my life to haunt and embarrass me and has taught me in a very graphic way what one major mistake can do to one’s life, career, and reputation.”

If you were a decent person instead of a total scumbag, you would recognize that people are capable of changing and deserve a second chance once they do. Have you never done anything boneheaded for which you needed forgiveness?

[Malika the Maiz]

Like many MAGAns Frank is not to be taken seriously on this point, he regularly refers to black people with the N word here among other racist comments. He’d not hold it against any politician that they were current Klansmen.

[Frank Drackman]

The "N-Word"?? you've got me confused with Barry Osama, or maybe Robert KKK Bird.

[hobie]

Yes. Frankie 'Wounded Warrior' Drackamn, America's Neediest Veteran, is not a credentialed holder of the N-Card. Whereas I am. I am probably the only one here licensed to say the N-word

[Frank Drackman]

Someone has to defend your right to say it, picking out a good "licensed" Oral Surgeon after you say it is up to you

[Magnus Pilatus, MBA, MD, JD, PhDx2]

Do you think blacks are intellectually capable of getting a picture ID to vote?

Or do you think blacks are uniquely too stupid to get a picture ID to vote?

[A Woman of No Importance]

I think that a question that begins with the deeply flawed premise that "blacks" are a monolithic unity is far too simplistic to deserve an answer.

[Malika the Maiz]

I think people such as yourself that don’t get that the argument you think you’re countering is that blacks (among many other groups) are more likely to face challenges to getting all the papers some want to require for voting are stupid.

[Frank Drackman]

I get why your typical Black guy with a few felony convictions, maybe "on Paper" (you know when you've got "White Privilege"? when you don't learn what "on Paper" means until you're in your 50's) might not have a current valid ID, but what's the deal with your NFL/NBA/Rap Stars getting pulled over in the AMG for Illegal Tint, No Tag, and the Tri-fecta, no License??? I'd say maybe they're lazy, but you don't get to the NFL/NBA/Rap Star if you're lazy

Frank

[Malika the Maiz]

“to the Rap Star”

What a moron. Conservative populism, folks!

[The Margrave of Azilia]

" the Democrats have repudiated what the Klan stood for whereas the Republicans have embraced it"

Yes, the Democrats no longer swear allegiance, as the Klan did, to the "eternal separation of church and state."

https://www.newsweek.com/judging-judge-barrett-separation-church-state-opinion-1534984

They keep *claiming* to be for church/state separation, but they only oppose establishment of religions they dislike. The woke religion - they like it and want to establish it.

[Malika the Maiz]

“The woke religion”

Yawn. The Founders knew the difference between ideologies (and adherence to them) and religions (and adherence to them) even if you don’t, and they only wrote about prohibition of the establishment of one of those (and protection of the exercise of one of them).

[The Margrave of Azilia]

OK, I had said that in this case the Democrats had repudiated what the Klan stood for, but apparently I was wrong.

[A Woman of No Importance]

Oh come now, not even you are that stupid. Nobody is wrong about everything, not even the Klan. If a Klansman says that today is Monday, that does not automatically make it some other day of the week.

[Dan Schiavetta]

It depends on what Trump says, specifically what kind of mood he's in, who talked to him last, and whom he's pissed off at at the moment. If he hints that those were the good old days, the MAGA crowd will agree. If he says integration is good, they will agree. If the next day he hints that in fact segregation was good, they will find a way to explain the distinction.

[Frank Drackman]

It's the "Woke" crowd that's demanding Segregated Dorms these days.

[Frank Drackman]

By Sean Salai - The Washington Times - Wednesday, April 17, 2024
"Colleges are offering more optional graduation celebrations divided by race, sexuality and income in their first spring commencement season since the Supreme Court overturned affirmative action.
Harvard University, American University, Columbia University, Indiana University-Purdue University Indianapolis and Pennsylvania State University are among dozens holding ceremonies for Black graduates next month.
Other ceremonies popular in recent years include those for low-income students, undocumented immigrants, LBGTQ students, Arab graduates and “Pilipinx,” the gender-neutral term for Filipinos that liberals favor."

[Malika the Maiz]

“optional”

You can’t expect someone who writes like a third grader to get the importance of this term in contrast with the laws at play in Plessy.

“We won with poorly educated. I love the poorly educated!" DJT

[Magnus Pilatus, MBA, MD, JD, PhDx2]

Where is the optional ceremony for Whites?

[Malika the Maiz]

The point of the ceremonies is for underrepresented groups.

[Frank Drackman]

Some how I missed the one for White NFL Defensive Backs.

[Malika the Maiz]

And the one for the morons who capitalize defensive backs (I’m sure you were invited).

[John F. Carr]

I would say Trump considers America's great era to be the mid-20th century, probably on both sides of Brown v. Board of Education. The Second Industrial Revolution had made America prosperous. Vietnam, malaise, robots, and outsourcing were still in the future.

[Mr. Bumble]

Probably from Dec. 7, 1941 to Nov. 1963.

[Malika the Maiz]

I’m not sure I’d say that, he seems to love the Gilded Age what with his McKinley praise, focus on territorial expansion and love of tariffs….

[John F. Carr]

The Gilded Age is roughly the start of the Second Industrial Revolution. We remember the rich people from the start of the era. For the next 70 years a rising tide lifted all boats. By the 1950s people who match the profile of the stereotypical Trump voter were in a good place. With little education they could raise a family on one income.

[Magister]

The really amazing part is that nothing else happened, nor anything new being discovered, after the Second Industrial Revolution which might have affected US incomes.

[Malika the Maiz]

I don’t dispute any of that, just noticing it’s likely the time period Trump seems to align with.

[Dan Schiavetta]

Also the marginal rate was 91% and we did just fine with that.

[Mr. Bumble]

Ask Joe Louis.

[Dan Schiavetta]

Also the percentage of federal revenue from businesses was 35% (now it's 9%) and the percentage of federal revenue from individuals and families was 40% (now it's 90%).

[Magnus Pilatus, MBA, MD, JD, PhDx2]

What were the effective rates?

[Frank Drackman]

Oh, you and your stupid wanting to know how much tax peoples actually ended up paying. They always leave out that Social Security/Medicare is 15.3% and starts with your very first Shekels with no deductions, and goes away around the $200K except for the 2.65% Medicare part

[hobie]

Basically, one could argue that Trump pines for a world and time where he isn't in it

[Armchair]

Seems to me it's the Democrats who want to return to the time of racial preferences for employment, government contracts, and college admissions. You got to be the right skin color in order to get into college.

Seems to me it's the GOP once again who is aiming for equality, where it doesn't matter what the color of your skin is.

Also seems like it's the 1950's and 1960's all over again, where you have aggressive "people" in masks rioting and "demonstrating" to keep certain minorities they find undesirable away from college campuses, while Democrats defend those "people".

And once again, seems we need a President to get those colleges into line. At least this time, he hasn't had to send in the troops. Yet.

[Malika the Maiz]

“You got to be the right skin color in order to get into college.”

The majority of college students are white.

[Thought about __ all my life]

You make the very mistake the Trump mocks

Let's take separate but equal. Plessy was as white as Barbara Streisand but it was the LAW that made him Black. Everybody on that train was okay with him there EXCEPT the law. But the law said that for having 1 out of 8 Black great-grandparent, he is Black

Trump says 3 things
Give the legitimate exercise of State Law back to the States !! We can just scorn Hillary Clinton's racist and idiotic view of Reconstruction , the woman thrives on lies and violence

2) Trump says "don't make the Feds your savior"...so again to go to Brown v Board of Education. Did Feds say Blacks are humans made in the image of the Creator , endowed with rights...naaah, they ruled based on a experiment done with black dolls --- look it up Trump again: Return to the Declaration and Constitution

3) Race in general....what did Government do for Blacks? Ans: all but destroyed them
Two examples
Despite the grand myth that black economic progress began or accelerated with the passage of the civil rights laws and “war on poverty” programs of the 1960s, the cold fact is that the poverty rate among blacks fell from 87 percent in 1940 to 47 percent by 1960. This was before any of those programs began.

Over the next 20 years, the poverty rate among blacks fell another 18 percentage points, compared to the 40-point drop in the previous 20 years. This was the continuation of a previous economic trend, at a slower rate of progress, not the economic grand deliverance proclaimed by liberals and self-serving black “leaders.”

…..

Nearly a hundred years of the supposed “legacy of slavery” found most black children [78%] being raised in two-parent families in 1960. But thirty years after the liberal welfare state found the great majority of black children being raised by a single parent [66%]

AND
This is Obama's genocide on display

"al ramifications of abortion on AfricanAmerican society: “Since the number of current living blacks
(in the U.S.) is 31 million, the missing 10 million represents
an enormous loss for, without abortion, America’s black
community would now number 41 million persons. It would
be 35 percent larger than it is currently. Abortion has swept
through the black community cutting down every fourth
member.”

TRMP IS TOTALLY RIGHT, our first Black President

[Dan Schiavetta]

Valentine v. Chrestensen, 316 U.S. 52 (decided April 13, 1942): city could ban public distribution of handbills which argued political issue as a pretext but really were advertising (exhibiting submarine for profit) (overruled by Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 1976)

Smith v. Springdale Amusement Park, 283 U.S. 121 (decided April 13, 1931): mechanical arm running along dog track with lure was not patentable (pretty obvious, I think -- any dog will chase any arm holding what it thinks is food -- in fact a lot of humans are like that, with money)

Kansas City Southern Ry. Co. v. Anderson, 233 U.S. 325 (decided April 13, 1914): not a denial of Equal Protection to make railroads doubly liable, with attorney’s fees, for killing livestock if they refuse to pay for loss

Doullut & Williams Co. v. United States, 268 U.S. 33 (decided April 13, 1925): damage to pilings on lower Mississippi caused by vessel is within admiralty jurisdiction

Hart v. Virginia, 298 U.S. 34 (decided April 13, 1936): no federal issue and therefore no habeas jurisdiction where state law self-defense defense to murder charge had been rejected by jury

Herron v. Southern Pacific Co., 283 U.S. 91 (decided April 13, 1931): in case brought by man whose car collided with a train, federal court can ignore state constitution provision that contributory negligence is always a question for the jury and direct verdict for defendant (I don’t think his holding survives Erie Railroad v. Tompkins, particularly when you read the Court’s rationale, which calls contributory negligence a rule of procedure)

Gibson v. Mississippi, 162 U.S. 565 (decided April 13, 1896): can’t contest de facto exclusion of blacks from state grand juries if it’s not de jure (obviously this is no longer good law)

Montgomery v. United States, 162 U.S. 410 (decided April 13, 1896): conviction of postal clerk for stealing money from mails affirmed; not entitled to entrapment defense (letters containing money had been addressed by inspectors to what clerk knew were fictitious addresses)

Amy v. Shelby County Taxing District, 114 U.S. 387 (decided April 13, 1885): state’s decision to allow back taxes to be set off by other obligations did not impair its contracts with bond holders

Wilson v. Everett, 139 U.S. 616 (decided April 13, 1891): appeal pursued only for the purposes of delay (this was before the era of certiorari and the Court was required to hear most appeals), i.e., appellant knew Court had no power to review facts, would be met with sanctions

[John F. Carr]

Contrast Montgomery with U.S. v. O'Steen from the last Short Circuit. Defendant in the second case did well by pointing out that the money he allegedly extorted was provided by the government. FBI gave criminal defendant cash to give to his defense attorney to pay off the prosecutor to get charges dropped. Extortion differs from larceny by requiring the victim to be a person. The law recognizes theft of government property as a crime. The law does not recognize extortion of the government as a crime.

[John F. Carr]

Montgomery also calls to mind the practice of leaving out a "bait car" for criminals to break into. I saw an article about the online equivalent. A slim adult woman plays a 13 year old girl trying to make herself look attractive. The creeps come out of the woodwork. No entrapment because she only provided the opportunity and they provided the hormones and poor judgment.

[Malika the Maiz]

Yes, they didn’t originate the criminal intent of the defendant but merely offered a seeming opportunity for them to act on it. Contrast with Sorrels where a prohibition agent had to ask a man he had chummed up with over war stories three times to get him liquor.

[Dan Schiavetta]

Yes — in Sorrels the Court held it was entrapment and reversed the conviction.

[Dan Schiavetta]

I’m also reminded of the Hill Street Blues episode on the “dollar collar”.

[Frank Drackman]

Loved the great comedian the cops were wanting to back, until they found out his name was "Vic Hitler" and he wouldn't change it.

[JoeFromtheBronx]

Gibson v. Mississippi was written by Justice Harlan.

Bolling v. Sharpe (segregated schools in D.C.) cited this opinion as evidence that due process has an equal protection component:

As long ago as 1896, this Court declared the principle "that the constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the general government, or by the states, against any citizen because of his race.

Harlan, however, had a big BUT as applied to this case:

We recognize the possession of all these rights by the defendant; but upon a careful consideration of all the points of which we can take cognizance, and which have been so forcibly presented by his counsel, who are of his race, and, giving him the full benefit of the salutary principles heretofore announced by this court in the cases cited in his behalf, we cannot find, from the record before us, that his rights, secured by the supreme law of the land, were violated by the trial court or disregarded by the highest court of Mississippi.

[A Japanese Student]

There is a well-known legal loophole called "bento-giri" in Japan. It involves delaying trial and filing appeals to avoid probation being revoked. (This will be patched this June under 2022 law.)

Under Japanese law, conviction is only effective upon becoming final. For example, defendants on appeal enjoy the same privileges afforded to pretrial detainees. Same applies to revocation of probation. Probation is automatically revoked (and the person sent to prison) only if another conviction becomes final during the probation period. If the defendant commits another offense during that period (or even gets charged with, or is sentenced for, such offense), the defendant can use delaying tactics to ensure the probation expires before the Supreme Court denies appeal, making the conviction final. (Judges do have discretion to revoke probation, but this is not automatic.)

Defense attorneys here almost never use certiorari in criminal cases. They file mandatory jurisdiction appeals, raising both a long-shot constitutional argument (within jurisdiction) and statutory or factual arguments (outside jurisdiction). The Court, however, can grant relief even in cases ordinarily lacking jurisdiction - which is what they are aiming for.

[Dan Schiavetta]

Thanks.

Then, there are those cases where a prisoner's appeal actually delays his release. Acts 26:32

[Frank Drackman]

Credat Judaeus Apella, non ego (HT J Holliday DDS)

[Thought about __ all my life]

Just know, Frank, that in using that phrase you show a timidity to assert your own view. You hide behind someone else.

[The Margrave of Azilia]

The USA used to have a habit of letting prisoners be bailed pending their appeals. I think that was stopped in 1984, one of the good reforms in the Bail Reform Act which had some really *bad* ideas (like pretrial detention without bail).

(Is the Bail Reform Act known by its acronym?)

[Frank Drackman]

Oh yeah, would have been great to have Ted Bundy stalking the Florida State Campus for years.

[The Margrave of Azilia]

While we're on the subject of pretrial detention without bail in non-capital cases, I wonder if more people here are willing to come out against it and admit it's unconstitutional under the 9th Amendment (in the case of the feds) and the Privileges and Immunities Clause of the 14th Amendment (in the case of the states).

You no longer have the burden of defending pretrial detention without bail of alleged rioters. Instead, you face an administration you *don't* like potentially denying defendants bail.

So can we now get some more people willing to pipe up and defend the right to bail for noncapital defendants?

[Noscitur a sociis]

The Bail Reform Act still allows bail pending appeal in most cases—it’s the defendant’s burden to show that the release plan is appropriate by clear and convincing evidence. See 18 U.S.C. § 3143(a)(1).

[The Margrave of Azilia]

Allows in most cases or grants in most cases?

The U. S. Constitution *allows* pardons in most cases.

[A Japanese Student]

On this day in 2018, the Court granted the Chinese government's motion to argue as an amicus - a privilege usually reserved to the OSG. Apparently this wasn't the first time a foreign sovereign argued as an amicus before the Supreme Court; see note 133 in https://columbialawreview.org/content/respectful-consideration-foreign-sovereign-amici-in-u-s-courts/

[Frank Drackman]

Problem when you hear one Chinese case, an hour later you want to hear another one.

[A Japanese Student]

Firearms and Swords Control Act Case (First Petty Bench, decided April 13, 1967): Non-edged imitation swords made of stainless steel are "swords" under law because one can easily sharpen it using electric grinders

Customs Act Case (First Petty Bench, decided April 13, 1995): Prohibiting importation of obscene matters for personal use does not violate the Constitution

Metropolitan Hiroo Hospital Case (Third Petty Bench, decided April 13th, 2004): Physicians' duty to report "abnormal death" does not violate Self-Incrimination Clause, even if the physician could later be prosecuted for negligent homicide, because they don't need to report things establishing criminal liability and it is a reasonable consequence of obtaining a license ("abnormal death" here occurred after she was injected with disinfectant instead of anticoagulant)

Sender Identification Information Disclosure Case (Third Petty Bench, decided April 13, 2010): Internet service providers cannot be held liable for denying voluntary disclosure of user's identity where the statutory requirements for disclosure are not clearly established

Special Kokoku-Appeal to Order Vacating Discovery Order (Second Petty Bench, decided April 13, 2011): Appellate courts cannot vacate discovery order without first notifying the party seeking discovery that an appeal was filed

[Dan Schiavetta]

Thanks as always for these.

How are swords "controlled" in Japan?

[A Japanese Student]

Possession of swords (15cm or longer for single-edged, and 5.5cm or longer for double-edged) are generally prohibited. Same for firearms (and since 2021, crossbows).

There are two separate licensing schemes for swords. Like firearms, you can get a for-cause license from the police - but this appears to be rare. Traditional Japanese swords can be possessed with a permit from the board of education. (Not foreign swords, however; see Feb. 1 entry)

[The Margrave of Azilia]

"Traditional Japanese swords can be possessed with a permit from the board of education. (Not foreign swords, however; see Feb. 1 entry)"

That's why the Highlander movies aren't set in Japan.

[Frank Drackman]

Looking for a Sword Fight?

[John F. Carr]

Injecting bleach is bad? I'll keep that in mind.

If it is legal to require people to report car accidents to the police a lot of other incriminating acts must be legal too. In my state it is only required to file a paper report with the police days later. In Pennsylvania a single vehicle accident must be immediately reported so police can come see if the driver is drunk.

[JoeFromtheBronx]

Justice Souter, in his Harvard speech, argued:

As I’ve said elsewhere, the members of the Court in Plessy remembered the day when human slavery was the law in much of the land. To that generation, the formal equality of an identical railroad car meant progress. But the generation in power in 1954 looked at enforced separation without the revolting background of slavery to make it look unexceptional by contrast. As a consequence, the judges of 1954 found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see.

Justice Harlan did see in his dissent. We now deem his dissent correct. If only we also deemed his Civil Rights Cases similarly so.

OTOH, Harlan did have topical blindspots. He argued in his dissent:

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.

He also suggests why he joined the dissenting opinion in the famous birthright citizenship case:

There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race.

[He did not say as policy the Chinese was deemed so different. He stated it as a simple fact.]

Also, his understanding of equal "civil rights" did not include integration of public schools [he dissented when a law blocked a private college from integrating] or miscegation laws.

Harlan understood the general principles of the 13A, 14A, and republican form of governments required striking down the railroad regulation involved. He still had a ways to go.

On that, it took the development of society and the law, which is a significant aspect of enforcing the Constitution.

Harlan and the majority had some excuse for being products of their times. Given we as a nation are repeatedly unable to learn the lessons of history [some lame gotcha won't do it], we should remain modest.

Justice Souter can have the final word:

If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.

[The Margrave of Azilia]

In 1964, Congress found a workaround for the civil rights cases, using interstate commerce instead of attributing private discrimination to state action. Much the better way.

[A Japanese Student]

Courts have interpreted the Thirteenth Amendment to prohibit some private racial discrimination. In that sense, Civil Rights Cases appears less relevant today in this context. See e.g. United States v. Hatch, 722 F.3d 1193 (CA10 2013) (holding that Shepard-Byrd Act, 18 USC 249(a), which punishes race-motivated assaults without interstate connection, is a valid exercise of Thirteenth Amendment authority)

[The Margrave of Azilia]

I'm not really a fan of the 13th Amendment being used that way. There's plenty of *real* slavery for the federal courts to worry about without getting creative about how to use the 13th Amendment to prohibit private discrimination.

[bernard11]

Yes, states had Jim Crow laws, but that doesn't mean they were the main, or even an important, cause of discrimination.

The main cause by far was private bigotry. We know this because areas that were not subject to Jim Crow laws, such as employment, nonetheless followed strongly discriminatory practices. We also know that these practices were common in many areas where there were no such laws.

The notion that the market eliminates discrimination is a fantasy.

[Dan Schiavetta]

Some time ago a VCer (possibly Eugene himself) did a post on how private individuals were forced to discriminate by those danged Jim Crow laws.

[The Margrave of Azilia]

Let's see...

When discrimination is illegal, it happens nonetheless.

When it's *legal,* it happens more often.

When it's *required,* it happens still more often.

Do you see? You get *more* discrimination in a regime where discrimination is legally required than you do in a regime were it's *not* legally required.

I presume Prof. Volokh was referring to fairly well-documented cases where state and local governments required streetcar companies to segregate, it made them do what they otherwise wouldn't have done.

[Frank Drackman]

Remember how peacefully School Intergration went in Boston?

[JoeFromtheBronx]

It isn't "private" discrimination to disallow black people in inns and so forth. Justice Harlan explained why.

[The Margrave of Azilia]

English inns had to serve paying guests so long as there was room for them and they were well-behaved. This wasn't because of some English 14th Amendment, but because the roads were infested with highwaymen* and the English weather was often bad, so it seemed like a good idea that, in exchange for the privilege of serving the public, inns should *not* leave people outside in the cold.

Congress, in a different context made a decision that it obstructed interstate commerce for hotels and motels to exclude travelling Black people.

But you and Harlan will need to explain why a Motel 6's discrimination should be dealt with on a state action theory, rather than an interstate commerce theory.

*Oops, I mean highwaypeople of both genders, and hermaphrodites.

[Thought about __ all my life]

Why not quote Lincoln !!!

IT IS PURE TRUMP LANGUAGE

We believe, as much as Judge Douglas, (perhaps more) in obedience to, and respect for the judicial department of government. We think its decisions on constitutional questions, when fully settled, should control not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it has often overruled its own decisions, and we shall do what we can to have it to overrule this. We offer no resistance to it.

Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense and the customary understanding of the legal profession.

If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the Court more than once, and had there been affirmed and reaffirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.

But when, as it is true, we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful to treat it as not having yet quite established a settled doctrine for the country. But Judge Douglas considers this view awful. Hear him:

The courts are the tribunals prescribed by the Constitution and created by the authority of the people to determine, expound, and enforce the law. Hence, whoever resists the final decision of the highest judicial tribunal, aims a deadly blow to our whole Republican system of government—a blow, which if successful would place all our rights and liberties at the mercy of passion, anarchy, and violence. I repeat, therefore, that if resistance to the decisions of the Supreme Court of the United States, in a matter like the points decided in the Dred Scott case, clearly within their jurisdiction as defined by the Constitution, shall be forced upon the country as a political issue, it will become a distinct and naked issue between the friends and the enemies of the Constitution—the friends and the enemies of the supremacy of the laws.

Why, this same Supreme Court once decided a national bank to be constitutional;3 but Gen. Jackson, as president of the United States, disregarded the decision, and vetoed a bill for a recharter, partly on constitutional ground, declaring that each public functionary must support the Constitution “as he understands it.”4…

[Mr. Bumble]

Anxiously awaiting Ilya's Weekend Update explaining why illegal aliens are a plus.

[Thought about __ all my life]

Yet if they are defended as a plus, why would Ilya be content that they stay in that state. Teachers will tell you how true this unfortunate facts as how people like Ilya have been responsible

2 of 3 Americans Wouldn’t Pass U.S. Citizenship Test
A survey found that people aged 65 and older were more likely to pass the test than those aged 45 and younger.

So I smile at that utter silliness of Ilya defending illegals on grounds that illegals don't understand because of people like Ilya
What a stunning illogicality that is.

[hobie]

"Trump is ‘fully fit’ for duty, his doctor says"

What else can the physician say or else risk an EO cancelling his ass?

[Frank Drackman]

Was he the same one who missed Parkinsonian Joe's Parkinsonism?? (I'd tell you what that is, but just remember it rhymes with your favorite Aperitif, Jism)

[Malika the Maiz]

Grown person who writes like a third grader makes cognitive impairment joke. Next up he’ll make fun of those lacking self-awareness!

[Mr. Bumble]

Yawn.

[Frank Drackman]

I've explained this like a gazillion times, my native tongue is German, where Nouns are capitalized, and they have this neat invention called the "Umlaut", the 2 dots over some vowels that tell you how to pronounce them, I'm sorry you're not Bi-Lingual (E-bonics doesn't count, or if it does, makes me Tri-lingual, (Feel me Dawg? is that how you say it? "Feel me Dawg"?) Ironically, except for the cursing, In conversation, people comment that I sound like I'm reading from a Script, (in my bland Military Kid, I'm from everywhere/nowhere accent) which is a sign of the Ass-Burgers, as is using anachronistic words, like "Erstwhile" and "Mopery" just like Sleepy Joe standing for 2 hours with his mouth open is a sign of Parkinson's .

Frank

[Malika the Maiz]

Nice try, but even in this response you don’t capitalize some nouns (for example people) and do other words that are not (for example in). So, like most things you say, it doesn’t hold up. Classic MAGAn!

Either way you should really learn English, it’s the official language of this country.

[Frank Drackman]

I probably talk gooder Engrish than you do, I don't think I've ever said "Nome Sane?" in my entire life.

[SRG2]

224lb? NFW.

[SRG2]

https://doctorzebra.com/prez/z_x45_trump_height_weight_g.htm

Trump is obese. His 6 feet 2 inches of height and 244+ pounds of weight, give him a body mass index (BMI) of 31.3, well above the threshold value, 30.0 kg/m2, that defines obesity. Trump and his physicians have demeaned themselves with a meager fiction that he is an inch taller.

[Thought about __ all my life]

But that ruins your point. If you had to judge you would say he is fit. Are you like the guy in the house with rain pouring , huge winds, and tornados sighted who says "well. Google says Weather Outlook is good "

[JoeFromtheBronx]

A bit of a foreign touch ...

I'm now reading The Travelling Cat Chronicles (in translation) by Hiro Arikawa.