Photo of the Day: November 27, 2009
Morning Roundup: Black Friday Edition
Car Pushed Into Anacostia River By Train
The Saturday Morning Post
In Vino Veritas
Last week, Stare DCisis explored what happens when the Supreme Court stops being polite, and starts getting real with states acting unconstitutionally. Virginia, in particular, was the perpetual thorn in the side of the early Supreme Court. Though Chief Justice John Marshall was a former Virginia legislator, the state's supreme court had some real authority problems taking orders from Marshall once he moved across the river. It may seem patently obvious that the Supreme Court can tell the states what to do, but that wasn't always so clear in those foggy days of the early 19th century. Like a headstrong adolescent, Virginia tried to test its boundaries at every turn.
In 1820, the Old Dominion enacted a law banning lotteries. At the time, lotteries were big business for the states. They had been imported as a means of raising development funds during the colonial period. Indeed, Virginia itself owes its founding to a British lottery conducted to raise money for the Jamestown Settlement. But Virginians, and eventually most Americans, became disenchanted with the secondary effects of lotteries — namely, greed, fraud and corruption. By the time of the Civil War, all but three states had prohibited lotteries.
In 1820, though, D.C. still had a lottery. And two brothers from Norfolk thought they could make some money off of it by selling D.C. lottery tickets in Virginia. Well, they thought wrong. They were convicted for violating the Virginia law. In the case Cohens v. Virginia, the Supreme Court upheld those convictions but handily struck down Virginia's argument that the big shots in D.C. should mind their own business. "You federal, me state," its lawyers argued, in short. Marshall responded with a swift clubbing.
Truth be told, Virginia had tried this same argument in an earlier case, Martin v. Hunter's Lessee, where it defended its right to seize land from the British in complete contravention of the treaty we had negotiated after the Revolution. But the Hunter's Lessee case is complicated and deals with the then-unsexy topic of real estate development in Northern Virginia. On top of that, Marshall had been recused from that case because of his interest in the land deals, thus depriving the country of his authoritative musings on federal power. When the Cohens appeal arrived at his doorstep, Marshall seized the opportunity to memorialize just what it means to be a state, united.
Okay, okay, so the convictions were constitutional, he said. What's important is that the Supreme Court could have said they weren't and Virginia would have had to listen. Look, Marshall said, the framers weren't stupid. Why would they make a Constitution, designed to replace the weak confederation we had before, with a system that would self-destruct? I'm not Inspector Gadget, and the framers weren't Chief Quimby. States simply cannot be trusted to determine whether their own laws are constitutional. What incentive do state court judges have to strike any of their own laws down? Especially when they're appointed by the people who wrote the laws in the first place.
In this case about lotteries, Marshall eloquently argues, Americans can't gamble with their constitutional rights:
It is very true that, whenever hostility to the existing system shall become universal, it will be also irresistible. The people made the constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or to unmake, resides only in the whole body of the people; not in any sub-division of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it.If you take a look at the cases the Supreme Court has yet to decide this term, a good number of them present challenges that originally came up before state supreme courts. Notably, the Big 9 will consider Arizona's insanity defense and Oregon's handling of a decision by the International Court of Justice.
Some state court judges out there, though, have unsubscribed themselves from all this federal spam. Two judges in Alabama, for example, believe that they can't be bound by los federales even today, in the 21st century. One didn't obey a court order to remove the Ten Commandments from his courtroom, the other said Alabama didn't have to follow the Supreme Court's decision invalidating the juvenile death penalty.
Even if it's old-fashioned attitudes like these that keep Alabama's citizens from the respect they deserve, not all old ideas are bad ones. Lotteries are flourishing again in the United States. D.C.'s lottery, which was reinstated in 1982, has made $1.1 billion. It took until 1988 for Virginia to reinstate its lottery, which has earned the state $5.3 billion, giving new meaning to its title of commonwealth.
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um, the research and trip down memory lane was great and all, but what the hell is the relevance of this story? By the way, did you know the Powerball Lottery is up to $86 Mil? Drawing is on Wednesday. But again, if you had a tie-in to the present for this story, you forgot to post it...or maybe this was a creative ending story?
Brendan, I assume the author is a law student blogging court cases that (1) arise in her 1L ConLaw class and (2) are to do with the DC Metro area. I was skeptical at first -- I like my DCist newsy -- but the feature's growing on me.