--- Shane Mage <shmage at pipeline.com> wrote:
> Justin wrote:
>
> >No Title of Nobility shall be granted by the United
> >States: U.S. Const., Art I, Sec 9. Cl. 8
> (--- mike larkin wrote: Royal titles are next.)
>
> How about
>
> --"...their respective Numbers, which shall be
> determined
> by adding to the whole number of Free
> Persons...three fifths of
> all other persons." : Art I, Sec 2. Cl. 3
> (Court has defined corporations as "Persons" but has
> not
> permitted states to count them, neither integrally
> nor
> even on a three-fifths basis, for representational
> entitlement)
"Persons" for some purposes are not necessarily
"persons" for all purposes. The 3/5th compromise was
of course abolished sub rosa by the 13th Amendment
("all other persons" referring to slaves).
>
> --"The Congress shall have power...To Declare
> War...": Art I, Sec 8, Cl. 10
> (Korean War, Vietnam War, Persian Gulf War I&II,
> etc.)
>
Well, Congress has that power. It's just that the Executive has decided to go to war without declaring it, a barbarism that the framers failed to foresee,a nd Congress, which could do something about it (cutting off the $, e.g.) hasn't.
> --"The President...shall have power, by and with the
> consent
> of the Senate, to make treaties...: Art II, Sec 2,
> Cl. 2
> (But Bush can withdraw from treaties without
> reference
> to the Senate or the faintest rebuke from Court)
Make is one thing, withdraw is another. The ABM treaty contained provision sfor unilateral withdrawal.
>
> --"The Privilege of the Writ of Habeas Corpus shall
> not be
> suspended unless when in Cases of Rebellion or
> Invasion
> [the Congress determines that] the public Safety may
> require it": Art I, Sec 9, Cl. 2
> (Except when the *lettre de cachet* names its victim
> as
> an alien, "enemy combattant," terrorist suspect, or
> anything else the AG can invent)
Enemy combatant was actually a S.Ct invention from WWII. But this hasn't do with the habeas thing. The enemy combatants are almost all outside what the appeals court said was federal jurisdiction. Jose Padilla is a different story. Don't know whether someone jas filed for the writ in his case, or if they have what the court said.
>
> --"Each State shall appoint, in such Manner as the
> Legislature
> thereof may direct, a number of Electors..." Art II,
> Sec 1, Cl. 2
> (Bush v. Gore)
Bush v. Gore didn't screw with that, but rather with other clauses, see several books on this for the story.
>
> --"The powers not delegated to the United States by
> the
> Constitution...are reserved to the States
> respectively,
> or to the people." Amendment X
> (All drug-prohibition laws as applied to intra-State
> commerce,
> and much, much else).
You don't want to go there. A narrow commerce clause
was the pre-New Deal court interpretation, leads to
restricted govt powers to regulate health and safety
issues. I don't think drugs laws are unconstitutional,
just a bad idea.
>
> --"No Bill of Attainder...shall be passed" Art I,
> Sec 9, Cl. 3
> (But it is now a "crime" to belong to or support any
> organization arbitrarily "attainted" by the
> Executive
> as a "terrorist" group).
>
> etc., etc.....
Not what Bill of Attainderis. That's a law naming YOU to be an outlaw. The problem with the provisions you mention is with the 1st Amendment freedom of association and speech rights.
>
> Impossible to overestimate how easily the Court
> can "distinguish" any provision of the Constitution,
> no matter how explicit. For instance, should
> Congress pass a "Sullan"* law giving something
> tantamount
> to a Title of Nobility to "Military Heroes,"
> Rehnquist,
> Scalia, Thomas et. al. would have no qualms about
> accepting it as a "National Security" measure.
>
> Shane Mage
Maybe. I think that if they created a heritable honor that required that the Hero be dubbed with a sword, called Sir, etc. that even Scalia and Thomas might choke.
jks
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