July 24, 1929 – President Herbert Hoover Proclaims the Kellogg-Briand Pact

On this day in history, President Hoover congratulated “the entire world” for coming up with “this additional instrument of humane endeavor to do away with war as an instrument of national policy and to obtain by pacific means alone the settlement of international disputes.”

The Kellogg–Briand Pact or Pact of Paris (formally, the General Treaty for the Renunciation of War) was signed on August 27, 1928 by the United States, France, the United Kingdom, Germany, Italy, Japan, and a number of other states. The Pact, named for its authors – U.S. Secretary of State Frank B. Kellogg and French Foreign Minister Aristide Briand – prohibited the use of war as “an instrument of national policy” except in matters of self-defense. It made no provisions for sanctions. The pact was registered in League of Nations Treaty Series on September 4, 1929.

President Herbert Hoover

President Herbert Hoover

Frank Kellogg earned the Nobel Peace Prize in 1929 for his work on the Peace Pact. Kellogg Boulevard in downtown St. Paul, Minnesota is named for Kellogg, but reportedly, roughly fifty percent of the residents of St. Paul believe the street is named for the breakfast cereal company.

Frank Kellogg

Frank Kellogg

You can read the text of Hoover’s proclamation here, and the text of the Kellogg-Briand Pact here.

July 23, 1936 – Birthdate of Justice Anthony M. Kennedy

On this day in history, Anthony Kennedy was born in Sacramento, California. Kennedy graduated cum laude from Harvard Law School and entered private law practice in California. He befriended many politicians, including Ed Meese, and donated large sums of money to Republican officials in the state. When Meese went to work for Ronald Reagan, Meese recruited Kennedy to help Reagan draft a tax cut plan. Reagan was impressed with Kennedy and recommended him for a vacancy on the U.S. Court of Appeals for the Ninth Circuit, which Kennedy joined in 1975 as the youngest federal judge in the country.

When Supreme Court Justice Lewis Powell retired in 1987, Reagan first nominated Robert Bork, but he failed to win confirmation. Reagan then turned to Douglas Ginsburg, who withdrew himself from consideration after only nine days when allegations leaked concerning his past marijuana use. Reagan, on the advice of Meese, finally turned to Kennedy to fill the vacancy on the Supreme Court. Kennedy’s nomination encountered little resistance and he was unanimously confirmed by the Senate and he took his seat on February 18, 1988.

Justice Anthony Kennedy

Justice Anthony Kennedy

Today, Kennedy is frequently viewed as the Court’s swing vote on social issues and has consequently held special prominence in several politically-charged, highly anticipated 5 to 4 decisions, including the notorious Citizens United v. Federal Election Commission (Docket No. 08-205), for which he delivered the opinion in 2010.

You can access an extensive list of articles about and analyses of the Citizens United decision here.

July 21, 1959 – D. H. Lawrence’s Novel Lady Chatterley’s Lover is Ruled Not Pornographic

On this day in history, Judge Frederick Bryan of the United States District Court for the Southern District of New York ruled in favor of Grove Press and ordered the Post Office to lift all restrictions on sending copies of Lady Chatterley’s Lover through the mail. This, in effect, marked the end of the Post Office’s authority — which, until then, it held absolutely — to declare a work of literature “obscene” or to impound copies of those works or prosecute their publishers.

The case began on May 15, 1959, when Barney Rosset, the publisher of Grove Press, sued the Post Office for confiscating copies of the uncensored version of D. H. Lawrence’s 1928 novel Lady Chatterley’s Lover, which had long been banned for its graphic sex scenes.

Barney Rosset

Barney Rosset

As recently as two years prior, the Supreme Court had ruled in Roth v. United States (354 U.S. 476, 1957) — a case involving a bookseller who sent erotic literature through the mail — that the First Amendment’s guarantees of free speech did not apply to obscenity. [As an aside, it should be noted that this was not the Supreme Court case memorable for the phrase regarding obscenity “I know it when I see it.” That case was Jacobellis v. Ohio (378 U.S. 184, 1964).

The case against Lady Chatterley’s Lover seemed cut and dry since it met the legal definition of obscenity at the time.

However, Rosset's lawyer, Charles Rembar, spotted a loophole in the Roth decision. That opinion, written by Justice William J. Brennan, claimed that the purpose of the First Amendment was “to assure unfettered interchange of ideas” and that “all ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guarantees.” But, Brennan went on, “implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.”

Rembar posed a question that Brennan apparently hadn’t considered: What if a book met the standards of obscenity yet also presented ideas of “redeeming social importance”? He argued that only material both prurient and “worthless” should be denied the privilege of free speech.

Presenting testimony from several literary critics, Rembar argued that Lady Chatterley’s Lover was a novel of ideas that actually advocated sexual fulfillment in marriage, rather than sex without love, as well as inveighing against hypocrisy and the mechanization of industrial life.

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The United States attorney representing the Post Office, S. Hazard Gillespie Jr., pointed out that Justice Brennan wrote that controversial ideas “have the full protection” of the First Amendment — “unless,” Gillespie emphasized, these ideas were “excludable because they encroach upon the limited area of more important interests.” One of those interests was keeping obscenity under wraps. Therefore Rembar’s argument was irrelevant.

Supreme Court Justice William Brennan

Supreme Court Justice William Brennan

Rembar rebutted that in the footnote in which Justice Brennan elaborated on what kind of “more important interests” were “excludable,” all of them involved actions, such as peddling, but none involved writing.

Rembar further observed that “A novel, no matter how much devoted to the act of sex, can hardly add to the constant sexual prodding with which our environment assails us.” In short, “community standards” were radically changing.

The judge accepted Rembar’s interpretation, and issued his opinion in favor of the defense.

After the ban on Lady Chatterley was lifted, the book reached Number Two on The New York Times’s best-seller list and, within a year, sold two million copies. It is now considered a “classic.” (Lolita was also in the top ten.)

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Mr. Rembar went on to defend Henry Miller’s Tropic of Cancer, banned in dozens of states and cities, and, building on his successes, represented G.P. Putnam’s Sons as the publisher of Fanny Hill.

July 15, 1964 – Details of Harassment of Black Voting Registration in Mississippi

On this day in history, just fifty years ago, the weekly newspaper of The Student Nonviolent Coordinating Committee (SNCC) published a not-terribly-unusual roundup of violent reactions to attempted voter registration by blacks in Mississippi. A partial reproduction of the list is shown below. You can read more of this terrible and heartbreaking legal legacy here.

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July 1, 2013 – Prohibition is Finally Over!

On this date in history, Mississippi’s law permitting homebrewing went into effect, marking the first day since prohibition that the entire United States of America permitted homebrewing on the state level.

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On October 14, 1978, President Jimmy Carter signed legislation creating an exemption from taxation of beer brewed at home for personal or family use.  This exemption went into effect on February 1, 1979, and made homebrewing legal on a federal level in the U.S. But the 21st Amendment left regulation of alcohol primarily to the individual states. As a result, each states’ laws regarding homebrewing vary widely. Not all fifty states even allowed it, until July 1, 2013.

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In Mississippi, however, where there are an estimated 2,000 homebrewers, an enabling statute isn’t the only hurdle. Practitioners must purchase a $1,000 commercial brewing license. Also, it remains illegal to make your own beer in the “dry” counties of Mississippi. And even in places where homebrewing is legal, there are a number of subsidiary regulations limiting how much you can brew, where you can drink it, etc. You can read the entire Mississippi law here, or check the laws in your own state by clicking on this link of the American Homebrewers Association and then clicking on the orange Statutes by State button toward the top right of the page (at the bottom right of the screencapture below).

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What’s the objection to homebrewing? Some may cry health issues, but the real problem may be that, according to data from the Brewers Association, craft brewing sales have been increasing dramatically and taking over a greater share of the domestic beer market. And many, if not most, start-up breweries were founded by homebrewers, including the top three craft breweries in the U.S.: Samuel Adams, Sierra Nevada Brewing Co. and New Belgium Brewing Co.

The American Homebrewers Association (AHA) estimates that over 1 million Americans brew beer at home at least once a year.

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June 26, 1945 – The Charter of the United Nations is Signed by Fifty Nations

On this day in history, representatives of fifty nations meeting in San Francisco, California signed the 111-article Charter for a new international peacekeeping federation to replace the League of Nations. (Poland, which was not represented at the Conference, signed it later and became one of the original 51 Member States.)

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There were 850 delegates, and their advisers and staff together with the conference secretariat brought the total to 3,500. In addition, there were more than 2,500 press, radio and newsreel representatives and observers from many societies and organizations. The heads of the delegations of the sponsoring countries took turns as chairman of the plenary meetings.

The United Nations officially came into existence on 24 October 1945, when the Charter had been ratified by China, France, the Soviet Union, the United Kingdom, the United States and by a majority of other signatories. United Nations Day is celebrated on 24 October each year.

Flag of the United Nations

Flag of the United Nations

You can read the text of the United Nations Charter here.

June 23, 1947 – Passage of The Taft-Hartley Act

On this day in history, The Labor–Management Relations Act (Pub.L. 80-101, 61 Stat. 136) was passed over the veto of President Harry S. Truman. Informally called the Taft-Hartley Act after its main sponsors, Senator Robert Taft and Representative Fred A. Hartley, Jr., the law monitors the activities and power of labor unions.

The Taft–Hartley Act revised the National Labor Relations Act of 1935 (the Wagner Act). It was seen as a means of demobilizing the labor movement by imposing limits on labor’s ability to strike and by prohibiting radicals from their leadership. The law was promoted by large business lobbies including the National Association of Manufacturers. Labor leaders dubbed it a “slave labor” bill and twenty-eight Democratic members of Congress declared it a “new guarantee of industrial slavery.”

Rally at Madison Sq Garden in 1947 to oppose the Taft Hartley Act

Rally at Madison Sq Garden in 1947 to oppose the Taft Hartley Act

The Taft-Hartley Act banned the “closed shop,” permitted the president to order “cooling-off” periods before strikes in critical industries, and reduced the budget of the Department of Labor. The Act allowed the President, when he believed that a strike would endanger national health or safety, to take measures to seek a federal court injunction to block or prevent the continuation of the strike.

While Truman vetoed the bill originally, he invoked it 10 times in the remaining six years of his presidency, far more than any other president.

President Harry S. Truman defending his vetoing of the Taft-Hartley Act in a radio address on June 20,  1947

President Harry S. Truman defending his vetoing of the Taft-Hartley Act in a radio address on June 20, 1947

Supreme Court Revisionism

The New York Times reported recently:

The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice.”

For example, this past April, Justice Scalia made a misstep in a dissent in a case involving the E.P.A. Under the heading “Plus Ça Change: E.P.A.’s Continuing Quest for Cost-Benefit Authority,” he criticized the EPA for seeking cost-benefit authority in a 2001 case. But as the New York Times noted, that “he got its position backward. Worse, he was the author of the majority opinion in the 2001 decision.”

After law professors pointed out the mistake, Justice Scalia quickly altered the opinion, revising the text and substituting the heading “Our Precedent.”

Justice Scalia, proponent of "originalism" except in the case of his own opinions

Justice Scalia, proponent of “originalism” except in the case of his own opinions

Now, there is a way to find out quickly and easily when revisions happen. David Zvenyach, General Counsel to the Council of the District of Columbia, recently launched @Scotus_servo, a Twitter account that alerts followers whenever a change is made to a Supreme Court opinion.

The process uses an application written in JavaScript that crawls through the “slip” opinions posted to the Supreme Court website. If the application, which performs a crawl every five minutes, detects a change, it notifies the automated Twitter account, which tweets out an alert. Shortly thereafter, Zvenyach sends out a manual tweet that calls attention to the change. Here is an example:

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Since Zvenyach launched his twitter account, Joshua Tauberer (@JoshData) came up with a way to highlight the changes and he tweets them out in a “before” and “after” format like this example:

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These changes should make interesting complications for legal researchers.

June 15, 1836 – Arkansas Joins the Union as the 25th State and 13th Slave State

The name of Arkansas is of Algonquian derivation, denoting the Quapaw Indians, who were, however “removed” in 1834, and sent on to present-day Oklahoma.

Historically, the name Arkansas has been pronounced and spelled in a number of ways. The region, part of the 1803 Louisiana Purchase, was organized as the Territory of Arkansaw on July 4, 1819, but the territory was admitted to the United States as the state of Arkansas on June 15, 1836.

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In the early days of statehood, there was disagreement among the senators in the state on the spelling and pronunciation of Arkansas. One preferred to be called the senator from Arkansaw and the other preferred to be called the senator from ArKansas.

In 1881, the conflict was resolved when the state General Assembly passed Concurrent Resolution No. 4 stating that the state’s name was to be spelled “Arkansas” but pronounced Arkan”saw”. The act was modified in 1947 to add clarification. The Act is now codified as Arkansas Code 1-4-105:

2012 Arkansas Code 
Title 1 – General Provisions
Chapter 4 – State Symbols, Motto, Etc.
§ 1-4-105 – Pronunciation of state name.

Whereas, confusion of practice has arisen in the pronunciation of the name of our state and it is deemed important that the true pronunciation should be determined for use in oral official proceedings.

And, whereas, the matter has been thoroughly investigated by the State Historical Society and the Eclectic Society of Little Rock, which have agreed upon the correct pronunciation as derived from history and the early usage of the American immigrants.

Be it therefore resolved by both houses of the General Assembly, that the only true pronunciation of the name of the state, in the opinion of this body, is that received by the French from the native Indians and committed to writing in the French word representing the sound. It should be pronounced in three (3) syllables, with the final “s” silent, the “a” in each syllable with the Italian sound, and the accent on the first and last syllables. The pronunciation with the accent on the second syllable with the sound of “a” in “man” and the sounding of the terminal “s” is an innovation to be discouraged.”

In 1861, Arkansas withdrew from the United States and joined the Confederate States of America during the Civil War. Upon returning to the Union, white rural interests continued to dominate the state’s politics until the Civil Rights movement in the mid-20th century.

secede

Today, Arkansas has a number of distinctive characteristics, including the fact that Murfreesboro, Arkansas, is the home of the only diamond mine open to the public in the world.

John Huddleston discovered the Arkansas diamonds while he was spreading rock salt on his hog farm.

John Huddleston discovered the Arkansas diamonds while he was spreading rock salt on his hog farm.

More importantly, Arkansas now ranks first in production of bromine, accounting for about one-half of the world’s output. You may know what diamonds are and for what they are used, but what the heck is bromine?

Bromine, from the Greek word brómos (meaning “strong-smelling” or “stench”) is a chemical element with the symbol Br and atomic number of 35. It is used as an ingredient in flame retardants (added by law to children’s synthetic-fiber pajamas, for example), as a gasoline additive, and in swimming pool and hot tub maintenance. Citrus-flavored sodas often use brominated vegetable oil as an emulsifier.

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Next time you’re downing your citrus-flavored soft drink, raise a glass to Arkansas!

June 14, 1943 – Justice Jackson Fixes A Star in our Constitutional Constellation

On this date, the Supreme Court decided West Virginia State Board of Education v. Barnette (319 U.S. 624).

The Court’s opinion, delivered by Justice Robert H. Jackson, held that the Free Speech Clause of the First Amendment to the United States Constitution protected students from being forced to salute the American flag and say the Pledge of Allegiance in school.

It might be noted in addition that up until 1942, many children in America used the “Bellamy salute” to accompany the American Pledge of Allegiance. (Francis Bellamy authored the Pledge, and described the salute shown below to accompany it.) After the Fascists adopted this style of salute, Congress officially adopted the hand-over-heart stance to be used while the Pledge is recited.

American students citing the Pledge with the Bellamy salute

American students citing the Pledge with the Bellamy salute

In West Virginia State Board of Education v. Barnette, Justice Jackson memorably wrote:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

Justice Robert H. Jackson

Justice Robert H. Jackson

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