The Evolution of Judicial Review Part Two: The Constitutional Convention

 

Table 1: Judicial and Legal Aspects of the Four Plans Developed at the Constitutional Convention

Aspects	The Virginia Plan (Randolph) [1]	The South Carolina Plan (Pinckney) [2]	The New Jersey Plan (Paterson) [3]	The New York Plan (Hamilton) [4]
Federal Judiciary Structure	Bifurcated with multiple supreme tribunals and an indeterminate number of inferior courts.	Bifurcated with a single supreme tribunal and an indeterminate number of inferior courts.	Bifurcated with a single supreme tribunal and an indeterminate number of inferior courts.	Bifurcated with a single supreme tribunal and an indeterminate number of inferior courts including a number of specialty courts.
Nomination/Appointment Process	Judges are appointed by the national legislature.	Judges are appointed by the Senate.	Judges are appointed by the national executive.	Judges are nominated by the national executive and subject to confirmation by the Senate.
Judicial Tenure	Judges remain on the bench during good behavior without set term limits.	Judges remain on the bench during good behavior without set term limits.	Judges remain on the bench during good behavior without set term limits.	Judges remain on the bench during good behavior without set term limits.
Judicial Salaries	A fixed salary which cannot be altered during the tenure of a judge.	A fixed salary which cannot be altered during the tenure of a judge.	A fixed salary which cannot be altered during the tenure of a judge.	A fixed salary which cannot be altered during the tenure of a judge.
Federal Supremacy Clause	Yes	Although, plan presented by Charles Cotesworth Pinckney did not possess a federal supremacy clause, he supported the development of such a clause [5]	Yes	Yes
Jurisdiction	The supreme court would exercise only appellate jurisdiction in all cases of national concern. Original jurisdiction would be vested in the inferior federal courts.	The supreme court would have original jurisdiction in cases of impeachment, and in cases affecting ambassadors or other public ministers the Jurisdiction. In all other federal cases they would exercise only appellate jurisdiction.	The supreme court would have appellate jurisdiction in all federal questions except impeachments.  The only time the supreme court would have original jurisdiction would be in cases of impeachment.  In all other federal cases original jurisdiction would vest in the inferior courts with trials being adjudicated according to common law.	The supreme court would have original jurisdiction in prize and capture cases only, and appellate jurisdiction in revenue cases only.   All other questions would be left to the national courts created by Congress in the various states to address topics of national interest.
Power of Judicial Review	Yes, of federal laws only. Under this plan the national executive and the national judiciary combined to form a council of revision. The power to override conflicting state laws rested with the national legislature.	No, under this plan the power to review acts of the national legislature was vested in the national executive.	None specified.	No under this plan the power of review is left to the chief executives of the several states.
Size	Determined by the legislature.	Determined by the legislature.	Determined by the legislature.	Constitutionally mandated.

 

 On matters of judicial appointments, Governor Randolph of Virginia and General Charles Cotesworth Pinckney of South Carolina [6] favored the idea of granting exclusive power over national judicial appointments to the national legislature. Conversely, James Madison, William Paterson, and James Wilson opposed giving the legislature control over judicial nominations, initially preferring to impart the power over national judicial nominations to the national executive. Compare: the ninth resolve of Governor Randolph’s Virginia Plan [7], advocating vesting the authority over judicial nominations in the national legislature against the fifth resolve of The New Jersey Plan [8] presented by William Paterson. The New York Plan presented by Alexander Hamilton, the only delegate from New York to attend the entire Convention brokered a compromise in that under his plan the members of the supreme court would be appointed by the national executive but would be subject to confirmation by the national legislature.[9]

Another aspect of the proposed judiciary provoked an intense debate that reflected the diversity of views on the part of the delegates attending the Convention was jurisdiction. For example, the New Jersey Plan[10] proposed by William Paterson provided the proposed high court with only appellate jurisdiction, while Virginia Plan [11] advanced by Edmund Randolph granted the supreme tribunal original jurisdiction in cases involving the national interest.  Robert Yates’ summary of Judge James Wilson’s speech comparing and contrasting the Virginia and New Jersey Plans of governance offer a clear summation and contrast between the views of the major participants at the Convention on jurisdictional questions related to national judiciary, see: (Max Farrand, 1 The Records of Federal Convention of 1787 pp. 260-261) (4 vols.) (Max Farrand ed., rev. ed. 1966). Of all the plans presented Hamilton’s proposal was by far the most restrictive in that it would have granted the supreme court original jurisdiction in only prize and capture cases, while, extending its appellate competence to cover only revenue cases, see: Max Farrand, 1 The Records of Federal Convention of 1787 291-292 (4 vols.) (Max Farrand ed., rev. ed. 1966).

 

The right of the national government to override state laws that conflicted with national laws caused some controversy. Benjamin Franklin, James Madison, and Charles Cotesworth Pinckney supported the inclusion of a federal law supremacy clause as a means through which national laws could be enforced uniformly, see: Max Farrand, 1 The Records of Federal Convention of 1787 162-164 (4 vols.) (Max Farrand ed., rev. ed. 1966). Conversely, Elbridge Gerry of Massachusetts and Hugh Williamson of North Carolina opposed the inclusion of a supremacy. Gerry contended that such a grant of power to the federal government was unnecessary on the grounds that he believed remonstrance from the national government to the offending state would be sufficient to keep them in check, and if they remained obdurate that the nation government could use justifiable force to bring about compliance with national laws. Conversely, Williamson argued that such a grant of power to the national government would impinge on the ability of the states to develop their own laws and policies, id: Max Farrand, 1 The Records of Federal Convention of 1787 165 (4 vols.) (Max Farrand ed., rev. ed. 1966).

Between July 24 and July 26, 1787, the delegates to the Constitutional Convention submitted the following resolutions concerning the judiciary to the Committee of Detail

11. Resolved that a national Judiciary be established To consist of One supreme Tribunal. The Judges of which to shall be appointed by the second Branch of the national Legislature. To hold their Offices during good behaviour. To receive, punctually, at stated times a fixed compensation for their services in which no enerease or diminution shall be made so as to affect the Persons actually in Office at the time of such enerease or diminution.

12. Resolved that the national Legislature be empowered to appoint inferior Tribunals.

13. Resolved that the jurisdiction of the national Judiciary shall extend to cases with respect to the collection of the national revenue: impeachments of any national Officers: arising under laws passed by the general Legislature, and to such other questions which as involve the National peace and harmony. (Jensen, Kaminski, & Saladino, 1976, pp. 259-260)

Those delegates favored the inclusion of a supremacy clause won the debate over inclusion after agreeing to leave the details related to the article to the Committee of Leftovers, (The Brearly Committee) tasked with developing proposals to resolve outstanding issues that could not be resolved by the Committee of Detail. Neither of the drafts submitted to the Committee of Style by the Committee of Detail on August 6, 1787, or September 10, 1787, contained provisions for supremacy clause [12], or judicial review.  Interestingly, the topic of judicial review was never raised during the debates of the Constitutional Convention. The only mention of the subject occurred in the notes taken by James Wilson during the proceedings of the Committee of Detail as illustrated by the following passage found in the second volume of The Records of Federal Convention of 1787.

COMMITTEE OF DETAIL IV

 

…. <Insert the 11 Article>

 

(All laws of a particular state, repugnant hereto, shall be void, and in the decision thereon, which shall be vested in the supreme judiciary, all incidents without which the general principles cannot be satisfied shall be considered, as involved in the general principle.) (Max Farrand, 2 The Records of Federal Convention of 1787 p. 144) (4 vols.) (Max Farrand ed., rev. ed. 1967, 144).

 

 

The Brearly Committee decided to include a supremacy clause within the final draft of the proposed constitution, an explicit provision for judicial review was ultimately omitted from the final versions of the text that became Articles II, III, and VI of the Constitution of the United States. The final versions of Article II, Section 2, Paragraph 2[13]  Article III,[14] and Article VI, Clause 2[15] of the Constitution of the United States concerning the appointment of federal judges and the jurisdictional competence of the Supreme Court of the United States, and the supremacy of federal  laws were produced by the Committee of Style, and approved by the Convention as a Committee of the Whole reflected the compromise reached by the Committee of Leftovers, (The Brearly Committee) tasked with developing proposals to resolve outstanding issues.

 

The form of Article III that emerged from the Constitutional Convention endowed the Supreme Court of the United States with original jurisdiction in nine types of cases.

 

1.      Cases concerning federal questions.

2.       Litigation involving foreign dignitaries.

3.      Cases of admiralty and maritime Jurisdiction.

4.      Controversies to which the United States shall be a Party.

5.      Lawsuits between two or more States.

6.      Actions between a State and Citizens of another State; —

7.      Proceedings between Citizens of different States; —

8.      Disputes brought by Citizens of the same State claiming Lands under Grants of different States,

9.      And between a State, or the Citizens thereof, and foreign States, Citizens, or Subjects.[16]

 

In all other cases the Supreme Court of the United States was invested with appellate jurisdiction.[17]

 

Under the terms of Article VII, of the Constitution nine states had to ratify the text of nine states before the Constitution would enter into force. New Hampshire became the ninth state to ratify the Constitution approved the Constitution on June 21, 1788, nine months after the Convention closed. Despite the entry into force of the Constitution; adherents and opponents of the new Constitution understood that the failure of Virginia, New York, and North Carolina

to ratify the document would negate any effort to reform the weak confederal government into a stronger more centralized federal form.

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[1] MAX FARRAND 1 The Records of Federal Convention of 1787 20-22(4 vols.) (Max Farrand ed., rev. ed. 1966)

[2] For Pinckney’s Plan of government see: MAX FARRAND 3 The Records of Federal Convention of 1787 595-609(4 vols.) (Max Farrand ed., rev. ed. 1966)

[3] MAX FARRAND 1 The Records of Federal Convention of 1787 242-246(4 vols.) (Max Farrand ed., rev. ed. 1966)

[4] MAX FARRAND 1 The Records of Federal Convention of 1787 291-292(4 vols.) (Max Farrand ed., rev. ed. 1966) and MAX FARRAND 3 The Records of Federal Convention of 1787 619-630(4 vols.) (Max Farrand ed., rev. ed. 1966)

[5] See: MAX FARRAND 1 The Records of Federal Convention of 1787, 164(4 vols.) (Max Farrand ed., rev. ed. 1966).

[6] For Pinckney’s Plan of government see: MAX FARRAND 3 The Records of Federal Convention of 1787 595-609(4 vols.) (Max Farrand ed., rev. ed. 1967).

[7] MAX FARRAND 1 The Records of Federal Convention of 1787 20-22, at 21(4 vols.) (Max Farrand ed., rev. ed. 1966).

[8] MAX FARRAND 1 The Records of Federal Convention of 1787 242-246, at 244(4 vols.) (Max Farrand ed., rev. ed. 1966)

[9] MAX FARRAND 1 The Records of Federal Convention of 1787 291-292(4 vols.) (Max Farrand ed., rev. ed. 1966)

[10] MAX FARRAND 1 The Records of Federal Convention of 1787 242-246(4 vols.)(Max Farrand ed., rev. ed. 1966)

[11] MAX FARRAND 1 The Records of Federal Convention of 1787 20-22, at 21(4 vols.) (Max Farrand ed., rev. ed. 1966).

[12] Jensen, M., Kaminski, J. P., & Saladino, G. J. (Eds.). (1976). The Documentary History of the Constitution: Volume I - Constitutional Documents and Records, 1776-1787 (Vol. One) of Thirty-One. Madison, Wisconsin, United States of America: State Historical Society of Wisconsin.

[13] U.S. Const. art. II § 2, para. 2 (1788)

[14] U.S. Const. art. III  (1788) amended by U.S. Const. amend XI (1795).

[15] U.S. Const. art. VI, cl. 2 (1788).

[16] U.S. Const. art. III  (1788) amended by U.S. Const. amend XI (1795). The Eleventh Amendment restricted the ability of an individual to bring a lawsuit against a state by narrowing the circumstances under which a state could be sued by an individual.

[17] U.S. Const. art. III  (1788) amended by U.S. Const. amend XI (1795).

The Evolution of Judicial Review Part One: 1775-1787

Part One: The Pre-Constitutional Convention Period 1775-1787 

In the 247 years since the Continental Congress adopted the Declaration of Independence, the several states have operated under three forms of governments. First, from July 4, 1776, until February 28, 1781. The states operated as thirteen independent nations who sent delegates to the Continental Congress for the purposes of developing a common policy on matters of mutual concerns. Second, from March 1, 1781, to June 21, 1788, the thirteen independent states operated under a decentralized confederal system under the Articles of Confederation which reserved the majority of the power to the individual states. With the entry in to force of the Constitution on June 21, 1788, the system of government was transformed into the dual federalist system that exists in slightly altered form today.

Benjamin Franklin proposed the first version of a confederal form of government to the Second Continental Congress on July 21, 1775. [ 1] Contemporaneous with the resolution of independence (Lee Resolution) presented by Richard Henry Lee on June 7, 1776. The Second Continental Congress appointed a committee of thirteen members to study and prepare a draft of a confederation agreement.[2] Given the nature of the task, the Continental Congress assigned a delegate from each colony to the committee so that each of the colonies giving each colony a voice in the construction of the agreement. Article XIII, paragraph 2 of the proposed Articles of Confederation reported to Continental Congress sitting as a committee of the whole and transmitted to the States for ratification required the accession of all thirteen States before the confederal system would enter into force.  The ratification process began on November 17, 1777, when the Congress transmitted the proposed to the colonies for approval.[3] The exigencies presented by the American Revolution prevented a rapid process. The Articles of Confederation did not enter into until March 1, 1781 when the delegation of Maryland to the Continental Congress subscribed to the document.[4]  Under the confederal system established by the Articles of Confederation, the several States retained their status as thirteen independent sovereign nations who collaborated on issues of mutual concern by ceding their authority on military and foreign policy matters to the Congress of the Confederation (the United States in Congress assembled) as provided by the Articles of Confederation of 1781, Article VI, and Article IX respectively.  The construction of the Articles of Confederation and the political organ created under its terms gave rise to several defects, which ultimately prompted the convening of the Annapolis Convention of 1786 and the Constitutional Convention of 1787.

Many of the delegates to Annapolis Convention of 1786 and the Constitutional Convention of 1787 agreed on the need for a multi-tiered national judiciary composed of courts possessing original and appellate jurisdiction.  However, they were divided on several technical questions pertaining to the formation of the new judiciary, and the modifications to the underlying legal system necessary to create the new system. Among the questions that caused the most division were questions related to three subjects: First, the delegates disagreed on the manner of judicial appointments; Second, the members held divergent views on the apportionment of jurisdiction among the original and appellate courts; Third, although the representatives to the Convention acknowledged the need for some scheme that would ensure the supremacy of national laws that would render the states subordinate to the national government in all matters of national concern. The states present disagreed on the extent to which such a clause should be extended.

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[1] Dr. Franklin’s proposal for confederation was printed in 2 J OF THE. CONT’L CONG. 1774-1789, 195 (1775), (Worthington Chauncey Ford ed. 1905) available at http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(jc00267))

[2] The resolve to draft a confederation agreement was printed 5 J. OF THE CONT’L CONG. 1774-1789, 425 (1776), (Worthington Chauncey Ford ed. 1906) available at http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(jc0057))

[3] The record of transmittal was printed in 9 J. OF THE CONT’L CONG. 1774-1789, 935 (1777), (Worthington Chauncey Ford ed. 1907) available at http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(jc00941))

[4] The record of Maryland’s subscription to the Articles of Confederation was printed in 19 J. OF THE CONT’L CONG. 1774-1789, 231-214, (1781) https://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(jc00941))

Thoughts on the Origins of Judicial Review and the Development of the Doctrine during the period from 1775 to 1803: Abstract

Thoughts on the Origins of Judicial Review and the Development of the Doctrine during the Period from 1775 to 1803. 

By Nathan Zimmermann, ACP, CP, MA 

January 15, 2023 

Abstract: 

Today when people are asked about the Supreme Court of the United States most people mention famous Chief justices like Chief Justice Marshall, or Chief Justice Warren, and famous cases such as to cite only two examples Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803) along with Brown v. Board of Education, 347 U.S. 483 (1954). A common perception especially among students in high school is that the Court sprang from the mind of John Marshall much in the same Athena was born of Zeus. What students often fail to realize is that John Marshall, was the thirteenth person to serve on the Court ascending to the center seat eleven years after John Jay’s appointment as the first Chief Justice of the United States. Furthermore, he followed in the footsteps of three or four other Chief Justice of the United States depending on whether President Washington’s appointment of Associate Justice William Cushing on January 26, 1796, which, he declined a week later after the Senate had confirmed him, is counted among them. The purpose is twofold: first, to provide a brief sketch outlining the evolution of the United States from a series of thirteen independent sovereign states into a confederacy and a dualistic federal republic. Second, the successful transition made by the United States from a confederacy on the verge of collapse in 1785 to a thriving and expanding republic in 1805 is due part to the role played by the Jay, Rutledge, Ellsworth, and Marshall Courts in tending the embryonic legal system within the United States during the period from 1789 to 1805. 

Observations on the Trump and Biden Documents Scandals

Individuals propounded the existence of two different legal standards consisting of one for Democrats, and second more stringent one for Republicans should be mindful of the following. One, the laws on Presidential immunity for a sitting President are different than those for a former President. A sitting President possesses blanket immunity from criminal prosecution, while, in office. The former Presidents do not possess such a wide grant of immunity. Two, it should be noted that the case of President Trump differs from President Biden's case because, President Trump and his team refused on several occasions to comply with lawfully issued subpoenas duces tecum thereby giving justification for the raid. Three, the failure of President Trump's legal team to comply with multiple subpoenas duces tecum, demonstrates that they failed to exercise the due diligence required of members of the legal profession towards their client. Once a subpoena had been issued the legal team advising President Trump should have searched every square inch of Mar a Lago for classified documents. If they had been thorough in the execution of their duties a second and third subpoena would not have been necessary because, the documents would have been discovered and turned over. Their failure to exercise due diligence left President Trump vulnerable to such a raid and potentially criminal charges. Four, unlike President Trump and his legal team, President Biden's legal team turned over the documents in their possession willingly and voluntarily. In Biden's case the Archivist of the United States, and by extension the National Archives and Records Administration were not compelled to seek multiple subpoenas duces tecum to compel production and disgorgement of the records in his possession. By communicating with the National Archives, and arranging the transfer of the documents in President Biden's possession to the National Archives in a timely and expeditious manner President Biden's team exercised the due diligence required of attorneys possibly mitigating any future legal consequences. Five, the blanket grant of immunity that protected President Trump from any criminal process or prosecution stemming from the allegations made by E. Jean Carroll during his last two years in office now applies to President Biden as the current President of the United States. Six, turning to the question of whether a President can classify, declassify, or reclassify documents 'just by thinking about it', or through an oral statement without any supporting evidence of the intended change in classification as President Trump has claimed. In Department of the Navy v. Egan, 484 U.S. 518 (1988) Justice Blackmun writing on behalf of a five Justice majority emphasized that the President's ultimate authority to determine the level of classification and controls needed to secure information is part and parcel of a President's duties as commander in chief of the armed forces of the United States. Justice Blackmun asserted that the authority of the President in these matters flowed naturally from the powers granted to the President of the United States under Article II of the Constitution of the United States. "The President, after all, is the "Commander in Chief of the Army and Navy of the United States." U.S.Const., Art. II, § 2. His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President, and exists quite apart from any explicit congressional grant. See Cafeteria Workers v. McElroy, 367 U. S. 886, 367 U. S. 890 (1961). This Court has recognized the Government's "compelling interest" in withholding national security information from unauthorized persons in the course of executive business. Snepp v. United States, 444 U. S. 507, 444 U. S. 509, n. 3 (1980). See also United States v. Robel, 389 U. S. 258, 389 U. S. 267 (1967); United States v. Reynolds, 345 U. S. 1, 345 U. S. 10 (1953); Totten v. United States, 92 U. S. 105, 92 U. S. 106 (1876). The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief. Since World War I, the Executive Branch has engaged in efforts to protect national security information by means of a classification system graded according to sensitivity. See Note, Developments in the Law -- The National Security Interest and Civil Liberties, 85 Harv.L.Rev. 1130, 1193-1194 (1972). After World War II, certain civilian agencies, including the Central Intelligence Agency, the National Security Agency, and the Atomic Energy Commission, were entrusted with gathering, protecting, or creating information bearing on national security. Presidents, in a series of Executive Orders, have sought to protect sensitive information and to ensure its proper classification throughout the Executive Branch by delegating this responsibility to the heads of agencies. See Exec.Order No. 10290, 3 CFR 789 (1949-1953 Comp.); Exec.Order No. 10501, 3 CFR 979 (1949-1953 Comp.); Exec.Order No. 11652, 3 CFR 678 (1971-1975 Comp.); Exec.Order No. 12065, 3 CFR 190 (1979); Exec.Order No. 12356, § 4.1(a), 3 CFR 174 (1983). Pursuant to these directives, departments and agencies of the Government classify jobs in three categories: critical sensitive, noncritical sensitive, and nonsensitive. Different types and levels of clearance are required, depending upon the position sought. A Government appointment is expressly made subject to a background investigation that varies according to the degree of adverse effect the applicant could have on the national security. See Exec.Order No. 10450, § 3, 3 CFR 937 (1949-1953 Comp.)." Department of the Navy v. Egan, 484 U.S. 518, 527-528 (1988). The absolute final authority of the President of the United States in matters of classification and control of information is indisputable indeed the recent decision of the Eleventh Circuit Court of Appeals in Trump v. United States, 2022 U.S. App. LEXIS 26437 followed the reasoning employed by the Supreme Court of the United States in Egan. Having said that neither the Circuit Court of Appeals in the Trump case, or more importantly the Supreme Court of the United States in the earlier Egan decision held the President of the United States exempt from following the provisions enacted through executive orders developed under the auspices of 50 USC § 3161 to regulate and administer the classification and control of information. In the Trump case, which, the Supreme Court declined to overrule. and allowed the decision and its holdings to stand; the Eleventh Circuit argued implicitly that the President of the United States is legally bound to adhere to the processes and procedures established in accordance with 50 USC § 3161, and implemented through various executive orders. Last, a Congressional investigation is warranted, however, it should examine both the Trump and Biden cases.

Being Pro Choice a Series of Observations

In the conflict and the divide on abortion, there is something that anti-abortion proponents have overlooked. Many of those who oppose abortion tend to equate being pro choice with being pro abortion, this is not necessarily the case. In my view being pro choice means allowing a woman to exercise the freedom of choice that God imparted to human kind and made manifest through the operation of the intellect, the will, and the spirit. The manner in which a woman chooses to exercise her rights to life, liberty, and to ultimately pursue happiness are a function of the freedom of choice bestowed by God upon humankind. Thomas Aquinas maintained that God endowed humankind with a rational mind comprising the intellect, the will and a spiritual soul made manifest through the conscience. The combination of these elements, permits humankind to exercise their freedom of choice, (Aquinas, Sum I, Q. 83, Art. 1). Aquinas defined freedom of choice as the capacity to react positively or negatively to the abstract and immaterial universal. The ability to react either in a positive or a negative way constitutes the action of the human will as instituted and moved by the intellect Id: (Aquinas, Sum I, Q. 82, Art. 4). Consequently, humankind has been rendered subject to the choices that they make, the only qualification being that an individual cannot act in a manner that is discordant with his intellect and will because, to do so is unnatural. Every imputable act undertaken by an individual is weighed and adjudged to determine its permissibility. Within the scope of Thomistic philosophy, the question of whether an imputable act is permissible or impermissible requires measuring the act against the Principle of Double Effect. In his volume entitled Known from the Things that Are: Fundamental Theory of the Moral Life Reverend Martin D. O’Keefe, S.J. outlined the four conditions that form the principle: 1. The action must be morally good or at least morally indifferent (neither good nor evil); 2. The good effect must not be obtained through the evil effect, i.e. by means of the evil affect; 3. The evil affect must not be intended, but rather only tolerated; 4. There must be a sufficiently serious reason to justify allowing the evil affect (O’Keefe 1987, 53-55). The ability to conduct the operations necessary to weigh the relative morality or immorality of imputable acts; and by extension engaging in the decision making processes that characterize everyday life forms the basis for the freedom of choice that distinguishes human beings from other classes of animals. The freedom to choose the manner of our existence permits a person to develop his own system of ethics; one that accounts for his own cultural inheritances and personal experiences. Aquinas in discussing the Principle of Double Effect argue that a good end is lessened through and evil means see:( Aquinas, Sum I-II, Q. 18 Art. 4). "Reply to Objection 3: Nothing hinders an action that is good in one of the way mentioned above, from lacking goodness in another way. And thus it may happen that an action which is good in its species or in its circumstances is ordained to an evil end, or vice versa. However, an action is not good simply, unless it is good in all those ways: since "evil results from any single defect, but good from the complete cause," as Dionysius says (Div. Nom. iv)" In effect what Aquinas is that an end must be weighed against the means used to achieve it. For these reasons I would assert that being pro choice simply means allowing every woman the right to exercise their God given intellectual gifts to judge whether or not the termination of a pregnancy is an imputable act, whether it is justifiable or not, and is the proper course of action based upon her circumstances. My own personal views on abortion have no bearing on the issue, because, it is not my place to dictate or legislate how a woman should, and can exercise her freedoms. Forcing a woman to carry to term a pregnancy that resulted from sex crime, or that threatens her life if she does not want to so, is a transgression against her fundamental rights to life, liberty, and happiness. Attempting to legislate morality, and forcing her to do against her will is an attribute of a theocracy, and not a republic. While, those children that survive abortion procedures should be protected, this should not be a bar to prevent victims of rape, incest, forced prostitution, and of other forms of sexual slavery from obtaining abortions if they choose to do so. Also, women whose lives are endangered by a pregnancy should have the freedom to choose whether or not to terminate a pregnancy.

Bella

It is odd not having Bella here. I miss her greatly. She was a wonderful protector even in her old age, she remained capable of protecting me the last time some one attempted to break into the house. She inspired fear in postal workers and delivery workers alike. With Thomas, Evelyn, and Honey she was particularly gentle often herding them out of trouble. The nine months I spent convalescing in the den after shattering my leg; Bella slept pn the floor near the daybed to keep an eye on me. it is hard for me to write this because, I could not handle it emotionally and to leave before her end came for that I apologize to Mom for because, I wasn't able to keep it together and I bawled at Teavana so much so they gave me a cuppa to calm me. RIP Bella My friend.I love you very much. After my nephew gave me his puzzle ornament; he wanted to put it together in the living room where Bella made her perch. About ten minutes after we started the following dialogue ensued. Nephew: Uncle Nay Nay it is really lonely in here without Bella. Me: Yes it is Nephew: I know what will make it less lonely. Nephew runs out of the room and returns 5 minutes later with his plush TMNT figures, which, he places on Bella's perch; and then we proceeded to work on the puzzle untill he wanted to play hide and seek instead.

Political Brinksmanship and the Speaker's Chair

I believe Representative McCarthy is a good second choice for Speaker of the House, although I would have preferred a stronger centrist Republican such as Representative Bacon or Representative Fitzpatrick. I think that the potential dysfunction that will be caused by the Trumpist/Tea Party wing on economic issues renders any of them unfit to be Speaker. I think that any person who willingly encourages the majority to engage in brinksmanship tactics and strategies that could lead to the United States defaulting on its fiduciary obligations, and potentially risking the national credit rating being lowered has no business occupying the Speaker's chair. My Grandfather and Aunt who were both independently wealthy detested such brinksmanship, and counseled all in my family to vote against politicians who advocated such actions, notwithstanding their ultimate goals; because of their deleterious effects on national and international financial markets, such actions only serve to increase and heighten economic instability both nationally and internationally.

Ordered Liberty

With all the hubbub surrounding issues related to migration issues of late, my thoughts have turned again to the concept of ordered liberty. The ability of the federal, state, and local governments to protect the people is dependent upon adherence to the concept of ordered liberty as set forth in laws of the United States, and the judicial decisions interpreting the Constitution of the United States and the other laws flowing therefrom. True freedom, is not the freedom to do as one wishes without due consideration for the needs of society as a whole. In 1904 The Supreme Court of the United heard arguments in the case of Jacobson v. Massachusetts. The case asked the Supreme Court of the United States to determine whether a Massachusetts statute mandating that all school age children be vaccinated against Smallpox was constitutional. The Court in a 7-2 decision issued in February of 1905 affirmed the constitutionality of the law. The majority opinion written by Mr. Justice Harlan I, included language that remains relevant almost a century and a quarter after the decision was handed down, id: South Bay United Pentecostal Church v. Newsom 590 U. S. ____ (2020).

We come, then, to inquire whether any right given or secured by the Constitution is invaded by the statute as interpreted by the state court. The defendant insists that his liberty is invaded when the State subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best, and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that "persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State, of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made so far as natural persons are concerned." Railroad Co. v. Husen, 95 U. S. 465, 95 U. S. 471; Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U. S. 613, 169 U. S. 628, 169 U. S. 629; Thorpe v. Rutland & Burlington R.R., 27 Vermont 140, 148. In Crowley v. Christensen, 137 U. S. 86, 137 U. S. 89, we said: "The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law." In the constitution of Massachusetts adopted in 1780, it was laid down as a fundamental principle of the social compact that the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for "the common good," and that government is instituted "for the common good, for the protection, safety, prosperity and happiness of the people, and not for the profit, honor or private interests of anyone man, family or class of men." Jacobson v. Massachusetts, 197 U.S. 11, 25-27(1905).

The language is important because, it affirms the existence of a scheme of ordered liberty in which, the rights, freedoms, and liberties can be reasonably restrained, or checked if the government deems it necessary to do so in order to secure "the safety, health, peace, good order, and morals of the community." See: Jacobson v. Massachusetts, 197 U.S. 11, 27 (1905). The concept of ordered liberty so eloquently stated by Mr. Justice Harlan I, is one of the foundational pillars of the American Republic, and its legal system first explicitly articulated by Chief Justice Marshall in Gibbons v. Ogden, Citations: 22 U.S. 1; 9 Wheat. 1; 16 L. Ed. 23; 1824 U.S. LEXIS 370 (1824). The extent to which, an individual can exercise their rights defined by the Constitution subject to the restraints placed on them by the doctrine of ordered liberty, is dependent to a certain degree which, the protections contained in the Bill of Rights are incorporated as being applicable to the States. Application of the Bill of Rights to the states, and by extension the people occurs under the operation of the two Due Process Clauses contained in the Fifth, and the Fourteenth Amendments.