To commemorate Memorial Day, a look at the analytically ... unsatisfying ... 1918 Supreme Court rulings upholding the constitutionality of conscription
I was a little surprised when researching the meaning of adjacent to find that in its most common use it DOES require some sort of nexus. But there is absolutely no reason why this nexus has to be connection by a visible surface. It seems clear that wetlands are adjacent to bodies of water via ground water--that's why they are wet. The "puddle" analogy ignores the source of the water utterly.
Under his definition of a "surface connection" a house 5 blocks from a highway would be "adjacent" to it if there were a visible path from the road to the house.
I’ve felt for a while that there’s a very plausible equal protection argument against a males-only draft. Given the end of officially sanctioned sex discrimination during the Obama years, I wonder how a case challenging the Military Selective Service Act on equal protection grounds would go, and what it would look like.
The Fifth Circuit just had this issue before it, and held that it's up to the Supreme Court to revisit the 1981 ruling (Rostker) that rejected such a challenge:
I implore the staff of Substack to either fully support footnote links in their content or, if they already do, to modify their authoring tools to make them easier to use. At least instruct your authors, who are the reason we come here, to create footnotes that correctly link, bidirectionally, so we don’t have to scroll-and-search to read them.
And, while you’re at it, please don’t let reading a footnote set the “read” indicator at all.
Regarding originalism, you write “the separation of war powers ... may be the area of modern constitutional analysis in which the original understanding does the least work”. That sounds like a gentle way of explaining that there’s no originalist basis for the separation of war powers. Is that what you mean and would you say that’s accurate?
More interesting than the Draft cases was a decision in 1970 by Judge Wyzanski in Boston during the Vietnam War, that someone the US wanted to draft for the war could avoid conviction claiming a right to selective, non-religious conscientious objection. The Government did not appeal. I wrote a Case Comment about it in the 1971 University of Minnesota Law Review.. United States v. Sisson.
I was a little surprised when researching the meaning of adjacent to find that in its most common use it DOES require some sort of nexus. But there is absolutely no reason why this nexus has to be connection by a visible surface. It seems clear that wetlands are adjacent to bodies of water via ground water--that's why they are wet. The "puddle" analogy ignores the source of the water utterly.
Under his definition of a "surface connection" a house 5 blocks from a highway would be "adjacent" to it if there were a visible path from the road to the house.
I’ve felt for a while that there’s a very plausible equal protection argument against a males-only draft. Given the end of officially sanctioned sex discrimination during the Obama years, I wonder how a case challenging the Military Selective Service Act on equal protection grounds would go, and what it would look like.
The Fifth Circuit just had this issue before it, and held that it's up to the Supreme Court to revisit the 1981 ruling (Rostker) that rejected such a challenge:
http://www.ca5.uscourts.gov/opinions/pub/19/19-20272-CV0.pdf
I implore the staff of Substack to either fully support footnote links in their content or, if they already do, to modify their authoring tools to make them easier to use. At least instruct your authors, who are the reason we come here, to create footnotes that correctly link, bidirectionally, so we don’t have to scroll-and-search to read them.
And, while you’re at it, please don’t let reading a footnote set the “read” indicator at all.
Regarding originalism, you write “the separation of war powers ... may be the area of modern constitutional analysis in which the original understanding does the least work”. That sounds like a gentle way of explaining that there’s no originalist basis for the separation of war powers. Is that what you mean and would you say that’s accurate?
More interesting than the Draft cases was a decision in 1970 by Judge Wyzanski in Boston during the Vietnam War, that someone the US wanted to draft for the war could avoid conviction claiming a right to selective, non-religious conscientious objection. The Government did not appeal. I wrote a Case Comment about it in the 1971 University of Minnesota Law Review.. United States v. Sisson.