Constitutional Law I Outline

–          look at the article why ruberdeen was wrongly decided.
–          Get it at the library.
 
INTRODUCTION: Does the Congress have the authority to establish a “draft”?
 
Does the Congress have the authority to establish a “draft”? Yes!
Selective draft is not only an appropriate means but under the conditions of modern warfare the most prudent, just & equitable method which can be employed. History shows the definite intent NOT to limit the nation to voluntary enlistment. The power to draft was exercised in the Civil War & the War of 1812. There is not, as asserted, any common-law right of a solider not to be sent out of the country.
 
If the national government is a government of limited/enumerated powers, where does it say a draft is a power of the US Government?
Art. 1 Sec. 8 Cl. 12: Congress has the authority to provide & maintain a Navy.  
Art. 1 Sec. 8 Cl. 15: Congress has the authority to “provide for organizing, arming & disciplining, the Militia…  
 
Do other provisions of the Constitution “limit” such authority? (see the 1st & 13th amendments).
13th Amendment – no slavery or involuntary servitude.
1st Amendment – freedom of association. 
Serving the army is NOT slavery àThe 13th amendment abolished only well-known forms of slavery and it was not formed to destroy the power fo the go’vt to compel a citizen to render public service.
 
See Selective Service Cases, 245U.S. 366. Is the Court’s opinion based on a literal reading of the text, or stare decisis, or original intent, or past historical practices, or the structure of the system of government or other?
The courts look to:
TEXT
WHAT THE STATES WOULD DO
HISTORY
STARE DECISIS
 
Why are disputes about the meaning of the text of the Constitution inevitable & unavoidable? Fed 37.
God couldn’t communicate clearly. If God can’t, then we can’t. Madison says the nature of reality is so complex that you can’t capture it in words. Our ability to discern reality is limited, therefore interpretation is different & inevitable. The nature of language itself requires interpretation. The nature of nature, the nature of human discerning mechanisms & nature of language makes interpretation necessary.
 
What did critics say was wrong with the Constitution as originally presented for adoption?
Reply to Wilson’s Speech: “An Officer of the Late Continental Army” [William Findley] (11/6/87)
The power of Congress extend to the lives, the liberties & the property of every citizen. The sovereignty of the states will cause violent outbursts when they fight for power against Congress. Individual liberties are taken away.
 
CHAPTER 1: The Supreme Court’s Authority & Role
The Power of Judicial Review: Was the question of judicial review available? Could Marshall have decided Marbury’s case in a way that obviated any need for its final pages establishing the power of judicial review of congressional enactments?
Recusal: Marshall could have disqualified himself from participation in the decision to avoid deciding this question.
Common Law: The commission was a form of property, & Marshall determined that it vested when signed & sealed. He might have decided, however, that a commission does not vest as am atter of law until its delivery. In that case, Marbury would not have been entitled to the benefit of the commission despite the previous administration’s signature & seal.
Political Question: Marshall determined that Marbury’s right to his commission was a legal, not a political question, & thus a writ of mandamus would ordinarly be appropriate. If he ruled that the question was a political one & it would have been unreviewable by the court & moved to the executive branch. He could have said that cabinet officers should not be made subject to writs of mandamus.
Statutory Construction: Marshall construed $ 13 of the Judiciary Actr of 1789 as expanding the original jurisdiction of the Supreme Court by authorizing it to issue writs of mandamus to executive officers. He might have found instead that the Act conferred mandamus power only apposite to appellate jurisdiction, & dismissed for lack of jurisdiction since this was not an appeal or he could have found that the Act conferred mandamus power apposite to one of the constitutionally authorized categories of original jurisdiction, & again dismissed for lack of jurisdiction since this case did not fall into any of those categories.
Constitutional Interpretation: Marshall interpreted Art. III, $2, cl. 2 as setting forth an exhaustive list of the categories of possible Supreme Court original jurisdiction. He might have interpreted the list instead as illustrative but not exhaustive, as setting a fl