Prof. Gerard Magliocca of Indiana University has been doing historical work on the Supreme Court’s “Four Horsemen”—the Justices who dug in to resist FDR’s constitutional revolution in the 1930s—and is coming up with many noteworthy tidbits. Among them is a dissenting opinion by arch-conservative James McReynolds in a 1928 case called Casey v. U.S. At issue was a man’s conviction under a federal statute providing that if an individual was found to possess morphine derivatives without official stamps, it would be prima facie evidence of having obtained them from unlawful sources. Five Justices, led by Holmes, upheld Casey’s conviction, while four (McReynolds, Brandeis, Butler, and Sanford) dissented on various grounds. Here’s McReynolds:

Quote:
The suggested rational connection between the fact proved and the ultimate fact presumed is imaginary.

Once the thumbscrew and the following confession made conviction easy; but that method was crude and, I suppose, now would be declared unlawful upon some ground. Hereafter, the presumption is to lighten the burden of the prosecutor. The victim will be spared the trouble of confessing and will go to his cell without mutilation or disquieting outcry.

Probably most of those accelerated to prison under the present act will be unfortunate addicts and their abettors; but even they live under the Constitution. And where will the next step take us?
When the Harrison Anti-Narcotic Law became effective, probably some drug containing opium could have been found in a million or more households within the Union. Paregoric, laudanum, Dover’s Powders, were common remedies. Did every man and woman who possessed one of these instantly become a presumptive criminal and liable to imprisonment unless he could explain to the satisfaction of a jury when and where he got the stuff? Certainly, I cannot assent to any such notion, and it seems worthwhile to say so.

Ironic, or maybe not so, that cane-waving mossbacks like McReynolds often showed a stronger commitment to principles of civil liberty than much-hailed progressives like Holmes.

The Drug War vs. the Constitution: 1928 Edition | Cato @ Liberty

I usually enjoy reading old decisions - the style, the prose, the turn of a phrase, the imagery in them.
The victim will be spared the trouble of confessing and will go to his cell without mutilation or disquieting outcry.

But......."where he got the stuff" seems at odds with the rest of his opinon stylistically, but in a way it's bluntness enforces his reasoning.

Good post B.

My kind of grouchy old curmudgeon...
James Clark McReynolds - Wikipedia, the free encyclopedia

McReynolds was labeled "Scrooge" by journalist Drew Pearson.[D] Chief Justice William Howard Taft thought him selfish, prejudiced, "and someone who seems to delight in making others uncomfortable ... [H]e has a continual grouch, and is always offended because the court is doing something that he regards as undignified".[16][17] Taft also wrote that McReynolds was the most irresponsible member of the Court, and that "[i]n the absence of McReynolds everything went smoothly."[18]
Early on, his temperament affected his performance in the court.[11] For example, he deemed John Clarke, another Wilson appointee to the court, to be "too liberal" and refused to speak with him.[11] Clarke made an early decision to leave the Court, and McReynolds's antipathy was a factor.[19] Indeed, McReynolds refused to sign the customary joint memorial letter given to departing members.[20] In a letter, Taft commented that "[t]his is a fair sample of McReynolds's personal character and the difficulty of getting along with him."[21]

Justice Scalia struck a similar blow for freedom in MELENDEZ-DIAZ v. MASSACHUSETTS: Scalia wrote the majority opinion in that one. It threw prosecutors and defense attorneys into a tizzy, especially since DUI cases are prosecuted all the time based on certificates. I think they have since found a work around, but that case was a doozy.

I think it goes to show that the usual labels - conservative, liberal, right, and left - are unreliable.