Today in Supreme Court History: May 3, 1802

5/3/1802: Washington D.C. incorporated as the capital of the United States. Article I, Section 8 empowers Congress to "To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States."

Comments

[Malika the Maiz]

Wow, we came really close to not having DC where and how we know it:

“The bill was approved by the Senate by a vote of 14 to 12 on July 1, 1790, and by the House of Representatives by a vote of 31 to 29 on July 9, 1790.”

https://en.m.wikipedia.org/wiki/Residence_Act

[JoeFromtheBronx]

The temporary capitals were first NYC (now Manhattan), then Philadelphia.

Congress also met various places before the Constitution was ratified.

[Mr. Bumble]

Maybe it should be moved back to NYC (Wall Street?) since members of Congress are so big on trading stock and becoming millionaires while "Serving".

[Malika the Maiz]

Also fun:

“While the figure of Uncle Sam specifically represents the government, the female figure of Columbia represents the United States as a nation. An archaic character, Brother Jonathan, was known to represent the American populace.”

https://en.m.wikipedia.org/wiki/Uncle_Sam

[Syd Henderson]

Would you believe I only thought of Columbia as the symbol of Columbia pictures? (Which is actually a version of the Statue of Liberty.) Even though I've seen the painting of manifest destiny a hundred times.

[A Japanese Student]

Happy Birthday, the Constitution of Japan!

Promulgated November 3, 1946, and becoming effective on this day in 1947, the 78-year-old supreme law is breaking the record every day as the oldest unamended Constitution in the world.

Most of the amendment talks involve Article 9, and its relations with the Self-Defense Force (which, under the Constitution, has to insist is not a military) and the U.S. military. Most jurists now agree that the Constitution allows SDF to defend the territory from invasion. There is still a big debate over whether the Constitution allows collective defense, or attacking foreign territories in time of war. Unless and until we get nuked again, I doubt the people will ever vote to amend Article 9.

I'd say that the Article 9 debate is one of the two main reasons the Constitution has never been amended. Any attempts at constitutional amendment are seen as a step towards repealing Article 9. In fact, a law setting procedures for amending the Constitution was only passed in 2007 (during Shinzo Abe's first administration). It took years to implement technical corrections to that Act that should be uncontroversial.

The other reason why the Constitution has never been amended is simple: there was no need to do so. Our Supreme Court rarely exercises its power of judicial review, and when it does, the dispute is almost always non-ideologically charged (in fact, many of those decisions are unanimous). And the Constitution delegates many of the matters to the elected branch, from election procedures to how the local governments are structured. (Compare this to constitutions of some US states, which specify who can host a bingo game.)

[Speaking for normal people]

Which shows you don't know US Constitutional history. Every right in the Bill of Rights came from one of the pre-existing 20 State Constitutions. The longest running constiution is not Japan's but Massachusetts!!! The longest active written constitution in the world, and a model for the U.S. Constitution, is the Massachusetts Constitution of 1780, primarily drafted by John Adams.

[A Japanese Student]

Of course, there are hundreds of Constitutions adopted before us. Note the word "unamended" - if my research is correct, Massachusetts last amended its constitution in 2022.

[Syd Henderson]

Isn't a Bill of Rights incorporated in the Japanese Constitution? None of the post-1950 amendments sound like they would apply to Japan.

[Speaking for normal people]

Not very impressive at all. But I will defer. Let's see whether the compare when time passes. Japan's is 78 years old and Massachusetts is about 245.

[SRG2]

IMO Art 9 should be amended. 80 years is more than long enough to get past WWII. Japan is not remotely the country it was then.

[A Japanese Student]

The American equivalent would be amending (or at least, Congress proposing amendment to) the Second Amendment. Not sure which would come first.

[Brett Bellmore]

You mean in terms of public opposition?

[A Japanese Student]

Yes.

[Speaking for normal people]

But our rights are unalienable, you first have to deal with the Declaration of Independence on that point.

All of them believed that people have certain unalienable and inherent rights that come from God, not government, or come simply from being human. They also believed that when people form governments, they give those governments control over certain natural rights to ensure the safety and security of other rights. Jefferson, George Mason, and the other Founders frequently spoke of the same set of rights as being natural and unalienable.
====> In other words, when Jefferson wrote the Declaration of Independence and began to articulate some of the rights referred to in the Declaration, they were ultimately enumerated in the Bill of Rights

[Noscitur a sociis]

Your point being… what exactly?

[SRG2]

But isn't the DoI "[a] declaration of unity and love and respect"? 🙂

[JoeFromtheBronx]

Judicial review, except regarding the 26A, did not play much of a role in the amendments to the U.S. Constitution since the 1940s. The one exception would be the ERA, which failed in part because of expansive protection given in court cases.

Looking at the Japanese Constitution, it sets forth various rules that perhaps at some point in time might need to be tweaked comparably to how the U.S. Constitution moved up the inauguration or added an income tax amendment.

[A Japanese Student]

That is true, yes. Though some of the amendments did lead to interesting debates. Like the poll tax and photo ID law, 26A and early voting for the elderly, or the No Budget, No Pay Act.

There are some discussions on amending the Constitution to extend the term of representatives during a national emergency. Elections for the lower house must occur within 40 days of dissolution - but it's very possible that an earthquake would strike Tokyo. At least more likely to pass than amendments to Article 9.

[Syd Henderson]

That would probably be a bad idea, since unscrupulous politicians can make a national emergency out of anything. Trump's doing that now to justify his insane tariff policy.

[A Japanese Student]

It is. In fact, Japan had that power under the old Constitution. They invoked it in 1941, and the election next year was the total opposite of democracy: all political parties were absorbed into one totalitarian party.

[JoeFromtheBronx]

"earthquake would strike Tokyo"

Yes, going by documentary films, it seems there is a continual threat of dangerous creatures causing national emergencies.

[The Margrave of Azilia]

It sounds like Article 9 was amended by interpretation, like many constitutional provisions in the USA.

[JoeFromtheBronx]

The last two days (Legal Tender Cases and Buck v. Bell) are now also on the website, another case of them being inserted in.

On May 1st this year, the Supreme Court disposed of five final appeals, without comment, though taking so long to do so that it pushed back an execution a little bit:

https://www.usatoday.com/story/news/nation/2025/05/01/jeffrey-hutchinson-gulf-war-veteran-execution-florida/83380201007/

On May 2, Justice Jackson posted her recent speech “Preserving Judicial Independence and the Rule of Law" on the rarely used SCOTUS speech page.

https://www.supremecourt.gov/publicinfo/speeches/speeches.aspx

[SRG2]

Re: Hutchinson

I tend to think that for many people who understand rationally that someone who's brain damaged who commits a gruesome murder may not be fully responsible, emotionally they feel that they should be put down like a mad dog - which is, IMO, one reason that insanity defences are so difficult to win in the US - a jury may believe the defence but still want the man securely locked up.

Of course, right-wingers who've never served are notorious for lack of consideration to those who did.

[JoeFromtheBronx]

He repeatedly tried to argue that brain damage mitigated his crimes, including challenging the procedure used. He failed in that attempt.

The link includes a statement joined by over 100 vets citing brain damage arising from his military service and that an execution would be the "final abandonment of someone our country broke and then left behind."

Others will disagree that the evidence is there & argue he was validly executed for murdering four people, including three children. This is so even though he was "securely locked up" for twenty-five years and unlike a few cases, being a danger in prison does not seem to be a problem here.

[Stupid Government Tricks]

Your partisan slip is showing, as is your hurry to post without thinking -- what have right-wingers never served that left-wingers have?

As for the insanity defense, someone whose insanity made him commit a crime is still capable of committing that same or other crimes over and over. Why would you not want to lock him up?

You lefties are so full of compassion for criminals that you forget they had victims.

[Speaking for normal people]

YOu don't really think that these Libertarian whiners really read Adam Smith , do you ???

“Mercy to the guilty is cruelty to the innocent.”
― Adam Smith

[SRG2]

To my observation, right-wingers who have never served - most notably, Trump, but plenty in Congress - seem to have more animus against those who have served than the left where it counts. e.g., in funding the VA, for example.

As for the insanity defense, someone whose insanity made him commit a crime is still capable of committing that same or other crimes over and over. Why would you not want to lock him up?

But as they are not responsible they should not be punished as though they were. Obviously.

You lefties are so full of compassion for criminals that you forget they had victims.

I'm not a lefty, you clown. I am too much in favour of capitalism, free markets, etc, to be on the left. I am opposed to the authoritarian right, particularly those more inclined to bigotry, racism, (Chrisian) nationalism, etc.

One can have sympathy for victims as well as compassion for those who owing to a defect of the brain are not fully responsible for their actions. But apparently you don't understand that. Perhaps you have so little empathy, you reserve what little you have for the victims - which is perfectly understandable and even acceptable mitigation,

[The Margrave of Azilia]

Most veterans manage not to kill their girlfriends along with their girlfriends' 4, 7, and 9 year old children.

https://murderpedia.org/male.H/h/hutchinson-jeffrey.htm

[SRG2]

Most veterans have all their limbs as well.

[The Margrave of Azilia]

Most injured veterans manage not to murder etc.

[SRG2]

You know your argument is stupid, so why repeat it?

[The Margrave of Azilia]

You wrap this murderer in the mantle of "those who served." That's what I responded to.

[Syd Henderson]

I suspect Josh has an calendar app to post these and sometimes he has to update the expiration date.

[JoeFromtheBronx]

An ongoing theme was protecting the civil rights of those in D.C., including ending slavery (though the "civil rights" for some was the right to own slaves) and self-government.

The Constitution expressly only gives D.C. the right to electors in presidential elections. And that was ratified in 1961.

There is a non-voting delegate in the House. There was various efforts, both by simple legislation (Orin Hatch [R-UT] supported one effort), lawsuit, and constitutional amendment to have more. A lawsuit lost 2-1 with Judge Merrick Garland in the majority.

https://law.justia.com/cases/federal/district-courts/FSupp2/90/35/2478923/

There was also a failed constitutional amendment (time limit ran out in 1985) that would have treated it as a state for purposes of representation in Congress and electing the president. A limited approach that does not give D.C. the full powers of statehood.

There is no serious argument imho that D.C. constitutionally is barred from becoming a state. I think it's a sound policy.

A reasonable compromise is to provide home rule, provide voting rights for POTUS, and supply a voting representative in Congress. Home rule would remove, except perhaps by a supermajority vote, current congressional authority to override local policies merely on policy grounds.

Ironically, that might be harder to do without a constitutional amendment (the voting representative would be the key problem) though that is not totally clear. I realize the arguments for it are minority viewpoints and lean toward the other side.

[Noscitur a sociis]

There is no serious argument imho that D.C. constitutionally is barred from becoming a state. I think it's a sound policy.

What do you do with the twenty third amendment?

[A Japanese Student]

I don't think it requires Congress to establish a federal district.

[JoeFromtheBronx]

One idea that appears sensible is to have the federal government retain control of federal buildings & allot the 23A electors based on national popular vote.

[The Margrave of Azilia]

Why not give D. C. back to Maryland and repeal the 23rd Amendment?

It would, of course, turn the state Democratic, but I think it's Democratic already. At least there wouldn't be two extra Democratic Senators.

[JoeFromtheBronx]

DC. residents, as far as I can tell, do not want that.

If Puerto Rico wants to become a state, the resident's wishes are divided, I also think it should be. PR's politics is such that it's quite possible it will at least result in a split partisan delegate. Fine.

I also think, probably by constitutional amendment, territories overall should have the right to vote for president and have some more security for home rule. Again, some territories are conservative. Fine enough.

[Mr. Bumble]

Apparently, Capt. Dan is sleeping in this morning.

[Dan Schiavetta]

Shelley v. Kraemer, 334 U.S. 1 (decided May 3, 1948): the first case invalidating “restrictive covenants” prohibiting black people from buying houses in white neighborhoods; though covenant was between private parties, judicial enforcement of covenant was “state action” implicating Fourteenth Amendment equal protection clause (there’s something odd about this argument -- it seems to swallow up everything -- any agreement at all between private parties turns into “state action” once anyone takes it to court)

Lee v. Lee, 33 U.S. 44 (decided May 3, 1834): A freedom suit brought by slaves who had formerly lived in Virginia with their owner, appealing from a verdict in his favor. When Maryland and Virginia ceded parts of their land to the new D.C. in 1801, Congress provided that all laws of Maryland would remain in force. This would have included a 1796 law freeing any slave brought into the state. But in D.C. as a whole, slavery was legal. The part of Maryland ceded included “Washington County”; the part of Virginia ceded was “Alexandria County” (more or less modern-day Arlington County, later given back to Virginia). Here, the owner moved to Washington County, but assigned his slaves to owners in Alexandria county, and after a year brought them to him in Washington County. Was this an attempt to circumvent the 1796 law? The Court here holds that this question should have been heard by the jury and sends back for a new trial. Unknown what happened later. (With slaves being the appellants, the Court also refuses to entertain whether their market value was less or more than $1,000, the jurisdictional limit; “the value of their freedom is not susceptible of a pecuniary valuation”, although oddly mentions that it would have been relevant if it was the owner appealing.)

Stinson v. United States, 508 U.S. 36 (decided May 3, 1993): courts are bound by the commentaries of the Sentencing Commission (which unlike the guidelines, are not approved by Congress) which say that illegal gun possession is not a “crime of violence” so as to make defendant a “career offender” for aggravated sentencing

Hui v. Castaneda, 559 U.S. 799 (decided May 3, 2010): can’t bring Bivens action (violation of Constitutional rights by federal personnel) against Public Health Service officers for failure to diagnose cancer while in federal custody; 42 U.S.C. §233 provides immunity to PHS officers and suit can be brought only against the United States (which under §233 waives its sovereign immunity)

Jones v. R.R. Donnelley & Sons, 541 U.S. 369 (decided May 3, 2004): statute of limitations for claim under 1991 amendment to 42 U.S.C. §1981 (class action for racial discrimination) is determined by federal catch-call statute for newly created causes of action (four years, 28 U.S.C. §1658) and not state statute for analogous action

El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473 (decided May 3, 1999): The Price-Anderson Act of 1957 got the nuclear power industry going by limiting operators’ liability for nuclear accidents. It also allowed defendants to remove to federal court. Here the Court holds that this includes removal from tribal courts despite the federal courts’ usual rule of comity requiring exhaustion of tribal court remedies before filing in federal court.

United States v. Padilla, 508 U.S. 77 (decided May 3, 1993): conspirator has no expectation of privacy where co-conspirator also has control or supervision over place searched (no standing to contest consented-to search of car in which cocaine was found)

Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313 (decided May 3, 1971): the leading case on defensive non-mutual collateral estoppel: patent case dismissed because defendant, in a previous case brought by someone else, had established that its patent was valid

United States v. Thirty-Seven Photographs, 402 U.S. 363 (decided May 3, 1971): Censoring for obscenity, per the Court’s prior rulings, required a time limit for the censor to approve/disapprove, and prompt judicial review, Freedman v. Maryland, 1968. Here, to save the Constitutionality of a federal statute (prohibiting importation of “immoral articles”, 19 U.S.C. §1305) the Court feels free to invent a deadline of 14 days for decision and 60 days for completion of judicial review. At issue were pictures from Europe found by customs inspectors which publisher Milton Luros was intending to use to illustrate an edition of the Kama Sutra. (See Wallach, I., “Kama Sutra Sexual Positions (and How to Get Out of Them Without Injury)”, 1976.)

Martin v. City of Struthers, O., 319 U.S. 141 (decided May 3, 1943): ordinance against doorbell-ringing violated First Amendment (plaintiff was a Jehovah’s Witness) (I don’t agree with this decision -- the Court admits that Struthers is a steel town where many work nights and need their sleep)

[A Japanese Student]

Stinson: There is a circuit split over whether Kisor v. Wilkie, 588 US ___ (2019), supersedes Stinson. The commentaries to the Sentencing Guidelines are analogous to federal agencies interpreting their own regulations (i.e. Auer). See United States v. Vargas, 21-20140 (CA5 2023) (en banc).

Jones is relevant to the currently relisted cert. petition by a pro se litigant, which also involves statute of limitation for §1981.

[Dan Schiavetta]

Thanks!

[JoeFromtheBronx]

The Civil Rights Act of 1866:

every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property,

Yes, "make and enforce contracts" might be broadly defined. For instance, some courts and legislatures considered marriages a form of contract & relying on the Civil Rights Act and the 14th Amendment, found interracial marriages were protected.

(The few Southern courts that applied the law that way began to rule that other way in the 1870s. It was far from universally understood to be required even during Reconstruction.)

Jones v. Alfred H. Mayer Company held that 42 U.S.C. Section 1982, prohibiting racial discrimination in housing, was legitimate under the Thirteenth Amendment.

I suppose there are ways to classify certain contracts as private while banning discrimination in "public" ones involving property transfers, employment, and so forth.

If not, housing can still be treated as a clear case in part because it is expressly listed in the Civil Rights Act of 1866, which was particularly an inspiration for the Fourteenth Amendment.

[A Japanese Student]

Posting May 1 and May 2 entries. May 3-5 are public holidays.

Narcotics Control Act Case (Second Petty Bench, decided May 1, 1953): Constitutional for prosecutors to appeal to seek a longer prison sentence

Special Kokoku-Appeal to Dismissal of Objection (Third Petty Bench, decided May 1, 1979): Code of Criminal Procedure §366(1) (the prison mailbox rule) applies to objections to denial of postconviction relief made to the same court, not just appeals to higher courts

Special Kokoku-Appeal to Stay of Execution (First Petty Bench, decided May 1, 1990): Petition to stay extradition is mooted by extradition of applicant (see April 24 for earlier, unsuccessful appeal; the defendant was sent to PRC on April 28, 1990, to face hijacking charges)

Special Kokoku-Appeal to Search and Seizure Warrant (Second Petty Bench, decided May 1, 1998): Police can seize floppy disks without checking its content if it is likely that the storage media contains evidence and confirming its content on the spot could lead to destruction of evidence

Firearms and Swords Control Act Case (First Petty Bench, decided May 1, 2003): Gang boss criminally liable for pistol possession by his bodyguard because the defendant let the guard accompany him knowing the guard possessed pistols (under the "conspiratorial co-principal" doctrine, which I believe is equivalent to Pinkerton liability)

Murder Case (Second Petty Bench, decided May 2, 1952): An invitee who later trespasses into another room (to assault defendant) is a trespasser, and less strict self-defense requirement should apply; vacated and remanded

Mandatory Vehicle Accident Reporting Case (Grand Bench, decided May 2, 1962): Requirement to report traffic accidents to police does not constitute self-incrimination, because none of the matters required to be reported establishes criminal liability (that said, "negligent driving resulting in death or injury" is punishable by 7 years in prison, and negligence is very easily established)