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The National Law Library Volume Three PublicPublicPublic LawLawLaw by Howard L. Bevis William Ziegler Professor of Govermnent and Law Harvard Universi:y Originally published in 1939, by P. F. C OLLIER & SON CORPORATION TP Printed In The United States Of America ANTI N SHYSTER EWS M NationalAnno Law Domini LibraryAGAZINE 2000 Vol. 3 Black’s Law Dictionary defines “shyster” as “one who carries on Creator, Proprietor & any business, especially“AntiShyster” a legal business, defined: in a dishonest way. Christian Publisher An unscrupulous practitioner who disgraces his profession by doing mean work, and resorts to sharp practice to do it.” Alfred Adask Webster’s Ninth New Collegiate Dictionary defines “shyster” as adask@gte “one who is professionally unscrupulous esp. in the practice of law or politics.” For the purposes of this publication, a “shyster” is a dishonest attorney or politician, i.e., one who lies. An POB 540786 Dallas,.net Texas 75354-0786 “AntiShyster”, therefore, is a person, an institution, or in this case, 972-418-8993 a news magazine that stands in sharp opposition to lies and to The United States of America professional liars, especially in the arenas of law and politics. Original Preface Any attemptThe ONLY to cope legal with advice our thismodern publication judicial offerssystem is this:must be tempered with the sure andLegal certain knowledgeAdvice that “law” is always The growing importance of public a crapshoot. That is, nothing (not even brown paper bags filled law in the United States has brought with hundred dollar bills and handed to the judge) will absolutely the subject to the attention of both law- guarantee your victory in a judicial trial or administrative hearing. yers and laymen. Yet the term public The most you can hope for is to improve the probability that you law has acquired no definite content may win. Therefore, DO NOT DEPEND ON THE ARTICLES and is not found among the standard- OR ADVERTISEMENTS IN THIS PUBLICATION to illustrate ized headings employed in law books. anything more than the opinions or experiences of others trying The definition adopted for the purposes to escape, survive, attack or even make sense of “the best judicial system in the world”. But don’t be discouraged; there’s not of this volume is neither original nor another foolproof publication on law in the entire USA – except universally agreed to, but it provides a the Bible. simple basis for selecting the subjects to be treated. It fits, moreover, into the generic pattern of Anglo-American law which has developed around relation- ships rather than entities. The term public law is used here in contrast with the term private law and is meant to comprise the law governing relation- ships to which states and their agen- cies become parties. This definition, it is true, excludes certain material occa- sionally referred to as public law; but it includes, nevertheless, many more top- ics than can be dealt with in the avail- able space. The subjects treated in the following pages, therefore, do not ex- haust the list, but they appear to the author to be among the most impor- tant. Another might well have varied from this choice. Criminal Law, which should other- wise have been included, is treated in a National Law Library separate Volume 3 Public Law volume of this series. Howard L. Bevis, 1939 2 AntiShyster News Magazine “. it does not require a majority to prevail, but rather an irate, tireless minority keen to www.antishyster.com adask@ gte.net 972-418-8993 set brush fires in people’s minds.” – Samuel Adams ContentsContents Preface 2 (2) Suits between States (3) The Comity Clause (4) Privileges and Immunities (5) Extradition PART I (6) The Full Faith and Credit Clause The Law of 3. New States and Territories (1) Admission of States PUBLIC RELATIONSHIPS 9 (2) Acquisition of Territory (3) Status of Annexed Territory I. NATURE AND SCOPE OF PUBLIC LAW 10 III. THE THREE BRANCHES 1. What Is Law? OF GOVENMENT 25 2. What Is the State? 1. The Legislative Branch 3. States and Governments (1) Composition of Legislative Branch 4. The Nature of Law (2) Initiative and Referendum 5. Courts and the Law (3) The Federal Congress 6. Administrative Tribunals and the Law (4) The Executive in Legislation 7. Persons in the Law (5) The Money Power 8. Corporate Personality and the State 2. The Executive Branch 9. Rights and Acts (1) The Legislative Powers of the Executive 10. Relationships (2) Military Command 11. Public versus Private Law (3) Foreign Relations 12. The Problem of International Law (4) Recommendations to Legislatures 13. The Scope of Public Law (5) The Pardoning Power (6) The Appointing Power (7) Removal (8) Bodies Independent of the Executive PART II 3. The Judicial Branch (1) The Court Systems THE LAW OF CONSTITUTIONAL (2) Basis of Jurisdiction (3) Variation between Rules of State and POWERS AND LIMITATIONS 17 Federal Courts (4) Federal Crimes National Law Library Volume 3 Public I. GENERAL CONSIDERATION (5) The Law of Nations OF CONSTITUTIONAL LAW 18 (6) The Courts and Political Questions 1. Nature and Scope 2. Principles of Interpretation IV. POWERS OF GOVERNMENT 32 1. Separation of Powers (1) Origin and Meaning of the Phrase, II. THE AMERICAN SYSTEM Separation of Powers OF GOVERNMENT 20 (2) Incorporation into American Constitu- 1. The Federal and State Governments tions (1) Granted and Reserved Powers (3) Complete Separation of Powers Imprac- (2) Mutual Independence of Federal and tical State Governments (4) Administrative Powers-What are They? (3) Supremacy of Federal over State Powers (5) Nature of Power versus End to be 2. Relations between States Accomplished (1) Compacts between States 2. Delegation of Powers AntiShyster News Magazine www.antishyster.com adask@ gte.net 972-418-8993 3 (1) Legislation versus Administrative 13. Supremacy of the Federal Power Ruling 14. Burdens on Interstate Commerce (2) Judicial Work of Administrative Bodies 15. The Original Package Doctrine 16. State Taxation and Interstate Commerce V. FOREIGN RELATIONS 36 17. Foreign Commerce 1. Responsibility of Federal Government 18. Commerce with the Indian Tribes 2. Lack of Power over States 3. Role of the President X. POSTAL FACILITIES 56 4. Role of the Senate 1. Development of the Postal Power 5. Treaties and Other Agreements 2. Is the Federal Power Exclusive? 6. Dual Nature of Treaties 3. Power to Prohibit 7. Treaties and the Reserved Powers of States 4. Power to Punish . 5. Rights of the States 6. Protection of the Mail Service VI. WAR 39 1. Commanding Position of the President. XI. MONEY 58 2. Declaration of War 1. Money and Banks 3. Making of Peace 2. Federal Financial Agencies 4. Organization for War 3. Paper Money 5. The Militia 4. The Value of Money 6. Military Tribunals 5. Gold 7. Military Personnel and the Civil Courts 8. Occupied Territory XII. POLICE POWER 61 1. Development of the Police Power VII. TAXATION 42 2. Constitutional Limits of Police Power 1. Taxes Defined 3. Due Process and the Police Power 2. Public Purpose 4. Business Regulation and the Police Power 3. Procedure in Levying Taxes 5. Taking of Property and the Police Power 4. The Power to Destroy 6. Taxation and the Police Power 5. Classification of Property for Tax Purposes 7. Is There a Federal Police Power? 6. Federal Power to Tax 8. Bartering Away the Police Power 7. Limitations upon Federal Power 8. The Situs of Property for Tax Purposes. XIII. DUE PROCESS OF LAW 64 9. Taxes for Regulative Purposes 1. Development of the Concept of Due Process 2. Reason, the Essence of Due Process VIII. EMINENT DOMAIN 46 3. Scope of the Doctrine 1. Basis of the Right 4. Restraint Only upon Government 2. Public Use 5. Procedural Import of Due Process 3. Compensation 6. Substantive Requirements of Due Process 4. What Is a Taking? XIV. RETROACTIVE LAWS 67 IX. INTERSTATE COMMERCE 48 1. Definition of Retroactive and Ex Post Facto 1. Development of the Commerce Power Laws 2. What Is Commerce? 2. Effect of Due Process and Other Constitu- 3. The Element of Transportation tional Clauses 4. Commerce versus Production 3. Vested and Contingent Interests 5. The Element of Intent 4. Procedural Regulations 6. When Is Commerce Interstate? 5. Court Decisions As Retroactive Laws 7. The Instrumentalities of Commerce 6. Curative Acts 8. The Power to Regulate 9. The Power to Protect XV. OBLIGATION OF CONTRACTS 69 10. The Power to Prohibit 1. Contracts and the Due Process Clause 11. Agencies Developed under Commerce 2. Prohibitions Directed at Governments Power 3. Judgments As Well As Statutes Included National Law Library Volume 3 Public 12. Limitations on the Commerce Power 4. Meaning of the Term Contracts 4 AntiShyster News Magazine www.antishyster.com adask@ gte.net 972-418-8993 5. Public Contracts Included IV. ADMINISTRATIVE PERSONNEL 81 6. The Dartmouth College Case 1. Corporate and Natural Persons 7. Municipal Charters 2. Officers and Employees 8. Bankruptcy Laws, Federal and State 3. Officers in the Federal Service 9. Rules of Procedure Not Affected 4. Civil Service 10. Contract and Property Rights 5. Workmans Compensation 6. Civil Liability of Public Servants XVI. EQUAL PROTECTION OF THE LAWS 72 V. ELECTIONS 84 1. Similarity to the Due Process Clause 1. Objects and Forms of Election 2. Classification and Equal Protection 2. Methods of Voting 3. Examples of Classification 3. Proportional Representation 4. Zoning and Planning 4. State and Federal Laws 5. Race Discrimination 5. Official Ballots 6. Taxation 6. Voting Machines 7. Administrative Action 7. Polling Places 8. Registration of Voters XVII. BILLS OF RIGHTS 74 9. Marking the Ballot 1. Right to Bear Arms 10. Straight and Scratched Tickets 2.
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