Speakeasy Ideas

In a U.S. Supreme Court opinion written between the passage of the 14th Amendment and when the Court started “incorporating” the Bill of Rights against the states, the Court upheld the conviction and $10 fine against Herman Presser. Presser had led a group of about 400 armed people calling themselves Lehr und Wehr Verein (The Teaching and Defense Association), a pro-labor socialist group, in a parade through Chicago. In what must have quite the spectacle, Presser led the parade on a horse and carried a cavalry sword. Such armed parades were against Illinois law. Sometimes this case is cited, erroneously, by gun control advocates. Find out why.

LINKS

The case itself: Presser v. Illinois (1886)

Dave Kopel on Presser v. Illinois

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What is the extent of government authority to “protect” the common good during a public health crisis? Earlier this year, the United States Supreme Court denied a California church’s request to stop the enforcement of certain public health rules that negatively affected the way the church conducted religious services. In doing so, the Court relied upon the 115 year old Jacobson case that upheld a mandatory smallpox vaccination. The language used by the Court in Jacobson is frightening: “The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community.” We discuss where that standard leads.

LINKS

The case itself: Jacobson v Massachusetts (1905)

South Bay United Pentecostal Church v Newsom (2020) – Request for injunctive relief denied.

South Bay United Pentecostal Church of Chula Vista, CA, official site.

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Earlier this year, the Supreme Court of the United States — in a 6-3 decision in the case of Bostock v. Clayton County — held that homosexual and transgender people are protected from employment discrimination under the Civil Rights Act of 1964. The Act prohibits discrimination against anyone “because of sex.” Neil Gorsuch, writing for the majority, concluded that firing someone due to their homosexuality or transgender status is prohibited by that language. The Court discusses statutory interpretation and how, even if Congress did not contemplate a particular outcome, the words they choose when writing a statue, matter. We discuss how statutes often have consequences unintended by Congress. We also discuss an important question ignored by the Court: Does Congress have the legitimate constitutional authority to regulate the private, intrastate activity of individuals?

LINKS

The case itself: Bostock v. Clayton County (2020)

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In the conclusion to the rogue elector saga we have been following, the Supreme Court applied what I refer to as the “Erosion Doctrine” to unanimously hold that states can turn their presidential electors into mere rubber stamps, thus depriving them of any discretion when selecting the president. Over two centuries, the power of electors to use their discretion slowly eroded until this case, decided earlier this year, officially killing off that discretion and an original part of the Constitution with it. We discuss it.

LINKS

The case itself: Chiafalo v. Washington (2020)

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Earlier this year, in the case of Ramos v. Louisiana, SCOTUS overturned precedent by a 6-3 margin and held that states cannot convict someone of a criminal offense unless the jury verdict is unanimous.

Evangelisto Ramos had been convicted by a 10-2 verdict and sentenced to life in prison without the possibility of parole in Louisiana. Ramos was granted a new trial by this decision. That seems simple enough.

The real issue, however, was the deeper question of just how important precedents are, and when incorrectly decided precedents should be overturned. The subtext of that issue is all about a future possible challenge to Roe v. Wade.

LINKS

The case itself: Ramos v. Louisiana (2020)

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Earlier this month, the U.S. Supreme Court, in a controversial 5-4 decision, overruled a lower court order expanding Wisconsin statutory deadlines for submitting mail-in ballots due to the state government’s response to the Coronavirus. The five justice majority were all appointed by Republican presidents. The four justice minority were all appointed by Democratic presidents. Was this a strictly partisan outcome? We discuss it.

LINKS

The case itself: Republican National Committee v Democratic National Committee (2020)

The Verdict blog article referenced in the podcast: Why did the U.S. Supreme Court Endanger the Lives of Wisconsin Voters?

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I could drink, legally, during my freshman year of college, but not my sophomore year. Then I was legal again my junior year. Why? Because of the National Minimum Drinking Age Act of 1984. What authority does Congress have to set the drinking age for the states? That’s what South Dakota wanted to know. South Dakota said Congress had no such authority. The U.S. Supreme Court, in a 7-2 decision, disagreed. They upheld the act. We discuss it.

LINKS

The case itself:  South Dakota v Dole (1987)

Drinking Map – Check out the drinking age history of every state.

The Elizabeth Dole Foundation – What she is doing now.

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Pirates! Blackbeard! Queen Anne’s Revenge! Sovereign immunity! Enumerated powers! And, sexiest of all, copyright law! Stare decisis and legislative history, and separation of powers, too. The U.S. Supreme Court, just two weeks ago, dealt with them all. Did I mention PIRATES?! Avast, check it out, matey.

LINKS

The case itself: Allen v. Cooper (2020)

Some of Allen’s video and a story on the reclamation of Queen Anne’s Revenge.

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During the Civil War, Lambdin Milligan, a citizen of Indiana, was arrested, tried, convicted, and sentenced by a military tribunal to hang for alleged anti-Union activities. He argued his conviction was illegal and sought a writ of Habeas Corpus for his release. A unanimous Supreme Court ruled in Milligan’s favor. This case discussed the suspension of Habeas Corpus, martial law, and the power of government action during “exigencies” like a war (or coronavirus outbreak). A very timely case from the Civil War era.

LINKS

The case itself: Ex parte Milligan (1866)

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In 1899, in a story that could have been an episode of Gunsmoke or Bonanza, tribal police officer John Bad Elk shot and killed another tribal officer who was attempting to arrest him. Bad Elk was convicted and sentenced to be hanged. The U.S. Supreme Court awarded Bad Elk a new trial based on the common law argument that he had the right to resist an unlawful arrest. Sometimes, even today, this case will be cited for that proposition. However, the common law rule has been changed by statute just about everywhere. Do not do what John Bad Elk did. His argument no longer holds up.

LINKS

The case itself: Bad Elk v. US (1900)

John Bad Elk death notice

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