One blogger's opinion . . .

Franck, Matthew J mfranck at RADFORD.EDU
Tue Mar 7 13:11:38 PST 2006



Thanks for just the enlightenment I was looking for.  I am, though, a
little astonished at your non-astonishment.  First, a number of news
outlets found this aspect of Roberts' opinion noteworthy and even
surprising.  I do not know of any previous utterances by the Court
suggesting as broad an understanding of the "raise and support an army"
clause as you state, not even when augmented by the N & P clause.


I have a pretty expansive view of Congress's powers myself, but I yield
to you in this contest.  Mind you, I think that there is not one clause
of Article I, section 8, from the first to the eighteenth, that is
justiciable on its own bottom.  But the question of the scope of
judicial power to "enforce" these clauses with legal effect is separate
from the question whether those who do have constitutional
responsibility to use these powers-viz., the legislative and the
executive-ought to understand them as without inherent limits.  (So,
e.g., U.S. v. Lopez presented us with a fairly good case of a violation
of the commerce clause, but a non-justiciable one, in my opinion.)  Of
course, C.J. Roberts & co. no doubt do believe that that there are
judicially enforceable limits on the army clause.  What then are those


Perhaps my hypotheticals were ill-chosen.  Try these, setting aside
extraneous questions like the Bill of Rights and considering the
scope-of-power issue exclusively.  


1.)  Suppose I teach a Sunday school class.  Setting aside any doctrinal
objections founded on my religion (e.g., Quaker pacifism), may the
Congress command that I admit a recruiting sergeant into my class for
the purposes of encouraging enlistment?  May the Congress insist on the
Pentagon's opportunity to have its say every time I mention that my
young charges might go into the ministry?


2.)  My ten-year-old nephew runs a lemonade stand.  May he be compelled
to have an Army recruiter sit beside him at the foot of his parents'
driveway for purposes of handing out recruiting brochures?  May the
Congress insist on the recruiter's right to undertake this effort on the
grounds that my nephew occasionally encourages his little friends to
open their own lemonade stands?


3.)  May my ten-year-old nephew be drafted, carted off to "G.I. junior"
barracks, forbidden to communicate with his parents, and trained for
five or six years in preparation for the combat arms?  May Congress
insist on the Pentagon's right to press him into this service because he
has also been approached to join the Boy Scouts?


If these seem like absurd questions, that's the point.  I don't know why
Roberts' opinion would give us cause to say "no" in answer to any of
them.  But as possible exercises of a power "necessary and proper" to
"raise and supply an army," they don't pass the laugh test, do they?


I think I'm back where I began, believing (or rather hoping) that
Roberts' remarks were dicta.  I know they could be, for they were not
strictly speaking necessary for the decision of the case.



Matthew J. Franck
Professor and Chairman
Department of Political Science
Radford University
P.O. Box 6945
Radford, VA 24142-6945
phone 540-831-5854
fax 540-831-6075
e-mail mfranck at <mailto:mfranck at>



From: Marty Lederman [mailto:marty.lederman at] 
Sent: Tuesday, March 07, 2006 12:35 PM
To: Franck, Matthew J; lawcourts-l at; conlawprof at
Subject: Re: One blogger's opinion . . .


Matt:  As I understand your piece, you argue that the Court "merely"
addressed whether it would violate the First Amendment for Congress to
require schools to provide special access to the military, and that the
Court did not address, or resolve, whether Congress has any affirmative
Article I power to do so.  (Is that right?)  And it didn't address the
latter question, you assert, not because it's not a hard question, but
because it was uncontested by the litigants in the case.


What am I missing?  It was uncontested because it's not terribly
contestable, right?  Congress obviously has the power under the Army and
Navy Clauses, and the Commerce Clause, together with the N&P Clause, to
impose such a requirement.


You write:

	Even the most expansive reading of "raising and supporting
armies," augmented by the most latitudinarian reading of the "necessary
and proper" clause, would hardly permit the U.S. Army to station a
recruiting sergeant in my front yard all day long, to accost my young
neighbors with offers of great career options if they sign on to be
soldiers. (And if he doesn't move in and spend the night, Sarge is not
"quartered" in my house contrary to the Third Amendment.) Or try it
another way. It's one thing for Congress to create a draft and require
all eligible young men to register for it. It would be quite another
thing for Congress to require me, as a teacher, to check on the
draft-registration status of young men in my classes. 

I don't get this.  I happen to take what you call the most expansive
reading of those clauses, and of the Commerce and Spending Clauses.  But
even on the most modest reading of those clauses, what would the
possible objection be to the two hypos you raise?  The standing in the
front yard might trigger a duty of just compensation (cf. Loretto); but
surely it's authorized under the Army, Spending and N&P Clauses.
Similarly, why couldn't Congress tell teachers to check draft
registrations (again, putting aside Bill of Rights problems)?  The Army
and N&P Clauses are sufficient -- but so, surely, is the Commerce
Clause.  Schools are commercial enterprises (even where they are
nonprofit -- see Camps Newfound), and thus they can be regulated by
federal statute.  The school and the teacher must abide by OSHA, no?
And they can't, e.g., violate RICO.  What's different about your
hypothetical statute?


	----- Original Message ----- 

	From: Franck, Matthew J <mailto:mfranck at RADFORD.EDU>  

	To: lawcourts-l at ; conlawprof at 

	Sent: Tuesday, March 07, 2006 9:41 AM

	Subject: One blogger's opinion . . .


	. . . of the Rumsfeld ruling can be seen here:  File either under
"shameless self-promotion" or "desperately seeking enlightenment."



	Matthew J. Franck
	Professor and Chairman
	Department of Political Science
	Radford University
	P.O. Box 6945
	Radford, VA 24142-6945
	phone 540-831-5854
	fax 540-831-6075
	e-mail mfranck at


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