Reflections on the Evolution of my Martial Arts Training

As I begin the process of preparing for my next Dan testing which will hopefully occur later in 2026 or early 2027; I find that before I can focus on achieving proficiency with my new material I must address and confront the mental and spiritual doubts that litter my path forward, and which to degree hamper my efforts to refine the material I have learned to this point. From my earliest days training in Soo Bahk Do back in the 1990's have always harbored a kernel of self-doubt, and a marked lack of self-confidence about my abilities. My inherent lack confidence in my ability to reach a level of proficiency is inextricably linked to the natal physical disabilities that I possess and work to overcome on a daily basis. Part of my evolution as a practitioner of Soo Bahk Do has involved embarking upon training to become a qualified instructor in Soo Bahk Do. I must confess that this pathway is both rigorous and daunting. My greateat fear is that no matter how hard and vigorous my training regimen is that I will ultimately fail disappointing my instructor who have patiently invested a great deal of time and effort in molding me into a respectable practitioner. My ultimate goal is to become a practitioner who brings honor, and esteem to the dojang where I train, and my instructors.

Lawfare: Two Questions

 Although lawfare has customarily been considered to be an adjunct of and appurtenant to traditional warfare as Colonel Charles Dunlap noted in his seminal paper entitled "Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts" presented at Humanitarian Challenges in Military Interventions Conference (November 29, 2001).

I have been reflecting upon the two attempted impeachments of President Trump during his first term, and the fallout from the events of 6 January 2021 including the aborted legal case of United States v. Trump. When I consider these events in conjunction with the actions taken against prominent Democrats and other opponents of President Trump since his inauguration in January of 2025; two questions come to my mind immediately.

First, should the definition of lawfare be expanded to encompass such exercises in hyper partisanship regardless of whether they happen internationally or domestically?

Second, the actions taken by President Trump and his Justice Department against prominent members of the Democratic Party who oppose his policies such as Letitia James, Adam Schiff and others constitute an exercise in lawfare? Likewise, did the two failed impeachment attempts during President Trump's first term and the legal consequences arising out of the events that occurred on 6 January 2021 also qualify as an example of lawfare?

Evelyn Grace Heath

When my niece was born in 2014 I was not actively blogging so I did not post a picture of her on my blog. This post is meant to correct that oversight.

Cho Dan Essay

The answer to the question “what does Soo Bahk Do mean to me?” has evolved over time; much in the same manner as the art itself has transformed itself over the last thirty years. Before addressing the subject, I must digress and relate some of my personal history. Born eight weeks prematurely, I went into cardiac arrest two days later. During the resuscitation process one of my lungs collapsed briefly depriving my brain of oxygen. The damage resulting from the disruption of the oxygen flow to my brain manifested itself in theform of hypoxic encephalopathy. Physically, my condition is characterized by bilateral ataxia, hypometric eye movement, distal weakness in both my arms and legs as well as dysarthric speech. In simple terms my disabilities resulted in decreased balance, coordination, flexibility, reflexes, and speed, which translates into an irregular loping gait, uneven speech, and a slight delay in processing and executing verbal commands. Addenda: My disabilities also affect the manner in which I process and retain information such as corrections made to my technique. The nature of my disabilities resulted in my placement in the Cypress Fairbanks Independent School District’s special education and vocational rehabilitation program. As a special education student, I was subjected to frequent episodes of bullying and sometimes even physical violence. By the time I reached my sophomore year in high school the situations in which I found myself became untenable. On the advice of a friend, I began my training in Tang Soo Do Soo Bahk Do Moo Duk Kwan on 21 September 1992 under the guidance of the late Sa Bom Nim, William C. Milberger, Dan Number 27,713. At the time Soo Bahk Do Moo Duk Kwan emphasized a harder more active style with greater emphasis being placed on the elements that exemplified yang which endowed me with the techniques and the development of the Weh Gung, physical external energy necessary to defend myself from violence if the need ever arose. That is not to say that my training in the areas of the formation of internal energy, Neh Gung; and the development of intellectual/spiritual energy, Shim Gung were neglected by Sa Bom Nim Milberger. During my initial period of training in Soo Bahk Do Moo Duk Kwan from September 1992 to September 1998 Sa Bom Nim Milberger actively required me to devote myself insofar as possible to the creation of Neh Gung; and Shim Gung. Placing my focus on the development of the internal and intellectual aspects of my Soo Bahk Do training allowed me to compensate for my physical disabilities, and the limitations they impose on my ability to produce greater physical external power and exercise Weh Gung. Throughout this time Sa Bom Nim Milberger instructed me to pay particular attention to and to study in detail the inhalation and exhalation patterns of the hyungs, specifically the Pyung Ahn hyungs, Passai, and the three Chil Sung hyungs required of gup students during this period. Concentrating on the improvement of my breathing techniques allowed me to acquire tools that proved effective in calming myself amid stressful situations. These skills proved invaluable after I was diagnosed with fibromyalgia spondalosis in 1998. The breathing and meditation techniques Sa Bom Nim Milberger had commended to my attention allowed me to reduce the severity of the pain associated with the frequent episodes of fibromyalgia spondalosis that I experienced from September 1998 to March 2008. Unable to balance my academic work, my illness, and my training effectively, I was forced to abandon my training so that I could concentrate on the completion of the academic program and the abatement of my fibromyalgia. I have always regretted the decision that I made to sacrifice my training. I felt as though I had violated the final article of the Ten Articles of Faith, which, commands practitioners of Soo Bahk Do Moo Duk Kwan to “Always finish what you start: Move to action with sureness and with hope.” With this foremost in my mind I resolved to restart my training in Soo Bahk Do at the earliest opportunity. The chance to restart my training occurred in August of 2021, although, Sa Bom Nim Milberger had died several years earlier I was fortunate in that I found Tomball Soo Bahk Do under the leadership of Sa Bom Nim John Lupone, Dan Number 40211. Since, resuming my training in August of 2021 I have again sought to emphasize and focus on the development of the internal, intellectual, philosophical, and spiritual aspects of Soo Bahk Do, although, unlike my training as a teenager the reason for my attention to these areas permit me not only to compensate for my physical disabilities, but for injuries that I suffered in the interval between my training as a teenager and my current regimen as an adult; and the additional limitations these injuries placed on my ability to produce greater physical external energy and power, Weh Gung. Since I resumed my training in August of 2021, I have increasingly become aware of the importance of cyclical patterns within Soo Bahk Do, these patterns extend beyond Soo Bahk Do and into all aspects of the daily lives of humankind. The recognition of cyclical behavior and its importance inspired humankind to develop various world views as a means of explaining significance and meaning of the patterns discerned. Both occidental and oriental writings recognize and affirm the importance of cycles, comparing the first eight verses of the third chapter of the Book of Ecclesiastes against the forty-second chapter of the Tao Te Ching demonstrates the point. Ecclesiastes 3:1-8 "1 There is an appointed time for everything,and a time for every affair under the heavens. 2 A time to give birth, and a time to die; a time to plant, and a time to uproot the plant. 3 A time to kill, and a time to heal; a time to tear down, and a time to build. 4 A time to weep, and a time to laugh; a time to mourn, and a time to dance. 5 A time to scatter stones, and a time to gather them; a time to embrace, and a time to be far from embraces. 6 A time to seek, and a time to lose; a time to keep, and a time to cast away. 7 A time to rend, and a time to sew; a time to be silent, and a time to speak. 8 A time to love, and a time to hate; a time of war, and a time of peace." (Doctrine, The Confraternity of Christian, 2011) Tao Te Ching Chapter 42 "Tao begot one. One begot two. Two begot three. And three begot the ten thousand things. The ten thousand things carry yin and embrace yang. They achieve harmony by combining these forces. People hate to be “orphaned,” “widowed,” or “worthless,” But this is how the wise describe themselves. For one gains by losing And loses by gaining." (Feng, English, Lippe, & Needleman, 2011, p. 45). What are cycles? Merriam-Webster’s dictionary defined the term cycles in part; as both measures of time, and as a series of occurrences that are repeated over time. Derived from the ancient Greek word “kyklos” and the subsequent Latin word “cyclus” that can mean either a circle or wheel. Cycles can be either short or long. Regardless of the length, all cycles share common characteristics in the sense that all cycles are both balanced and circular in nature. Chang Shi Ja Hwang Kee, the founder of Soo Bahk Do Moo Duk Kwan and his designated successor Kwan Jang Nim, H.C. Hwang averred in the Hangul edition of the Moo Do Chul Hahk published in 1993 and the English translation published in 2009, that every example of cyclical behavior is characterized by three elements, a passive element called “Um”, an active element named “Yang”. The final element present in all types of cycles is a neutral element called “Do”. The purpose of this neutral force named “Do” is to regulate the cyclical processes. The “Do” governs the cyclical process by moderating and harmonizing both the passive “Um” and the active “Yang”. The moderating influence of the “Do” inspires the unity necessary to give substance and form to the material world id: (Hwang, 2009, 124-127). "From this opposition and synthesis, this world’s myriad images, forms, and things eternally derive and abide. Thus, the cosmos consists of three basic aspects: um, yang, and neutrality. Um and yang, as innate heterogeneous aspects, are mutually negating and contradictory antithetical forces. Neutrality, being neither um nor yang, serves a mediating function, positively harmonizing um and yang, effecting a synthesis of the dual forces to produce a new phenomenon beyond the duality."…. "I would like to introduce here my philosophy of balance, which I will discuss in more detail later. The Do, along with um and yang, is the mother-image of balance. Equilibrium consists of um, yang, and neutrality. Equilibrium has an inextricable connection with the maintenance of the life of this world’s myriad images, forms, and things." (Hwang, 2009, 126). Works Cited Doctrine, The Confraternity of Christian. (2011). Book of Ecclesiastes. In T. C. Doctrine, The New American Bible, Revised Edition (Fourth ed., Vol. One). Rome, Vatican City, Vatican City State: Doctrine, The Confraternity of Christian. Retrieved October 7, 2015, from http://www.usccb.org/bible/ecclesiastes/3 Feng, G.-F., English, J., Lippe, T., & Needleman, J. (2011). Tao Te Ching (Third ed., Vol. One). (G.-F. Feng, J. English, & T. Lippe, Trans.) Vintage Books. Hwang, K. (2009). Passage 4: The Ten Thousand Things are Produced Through the Harmony of Um and Yang. In K. Hwang, & H. C. Hwang (Ed.), Moo Do Chul Hahk (1993) (H. C. Hwang, Trans., A New Translation ed., Vol. One, pp. 125-127). Springfield, New Jersey, USA: Hyun Chul Hwang

Compromise a Repost because of the Shutdown

Our shared sociopolitical history demonstrates that Ishii Itaro was correct when he asserted, “in diplomacy, as in politics in general, compromise is essential; the interests of the opposition cannot be ignored. Give and take is crucial. One must think in terms of fifty-fifty, not seventy-thirty." Associate Justice of the Supreme Court of the United States Robert Houghwout Jackson highlighted the centrality of compromise and moderation to the sustainability of the Republic in his work published posthumously in 1955 and reprinted in 1963 entitled The Supreme Court in the American System of Government. In his discussion of President Lincoln’s suspension of the Writ of Habeas Corpus and Chief Justice Taney’s response in Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861), Justice Jackson contended that neither the President, nor the Chief Justice accorded the concerns of the other with the weight they deserved, and in effect unintentionally caused further damage to a nation rent asunder by war. Had Mr. Lincoln scrupulously observed the Taney policy I do not know whether we would have had any liberty, and had the Chief Justice adopted Mr. Lincoln's philosophy as the philosophy of the law, I again do not know whether we would have had any liberty (Jackson 1955, 76). The Founders intended the Constitution to be an organic document capable of addressing itself not only to their concerns, but as a document to protect succeeding generations. However, we must remain vigilant and guard against any interpretations that render the text too expansive or too restrictive such that it becomes useless and meaningless. "Now it is argued that these cases are distinguishable, because they arose under an act of Parliament which was not limited by any Constitution. So, indeed they were, and if our Constitution embalms inflexibly the habits of 1789 there may be something to the point. But it does not; its grants of power to Congress comprise, not only what was then known, but what the ingenuity of man should devise thereafter. Of course, the new subject-matter must have some relation to the grant; but we interpret it by the general practices of civilized peoples in similar fields, for it is not a strait-jacket, but, a charter for a living people." Reiss v. National Quotation Bureau, Inc. In order to ensure the continued stability of the United States both parties have an obligation to negotiate in good faith. A continuing resolution that does not address any Democratic Party priorities is not an example of negotiations that occurred in good faith. The President 's subsequent comments about the shutdown only serve to emphasize the fact that Republican leadership rejected outright any consideration of the priorities important to the Democratic minority.

Moo Do Creed

THE MOO DO CREED By Hwang Kee, Chang Shi Ja Kwan Jang Nim "The purpose of Moo Do is Hwal — to cultivate ourselves. Moo Do does not end in offense or defense. It is one step further, the purpose is life itself. Even facing the enemy, our goal is to save them. The principles of Moo Do are the principles of Nature. Guided by Moo Do we may achieve the goal of Hwal in the principles of Nature. To do so we must concentrate, stress the beauty, line, speed, and study scientifically. To provide all this is our creed." Hwang Kee, CSN, Founder of Soo Bahk Do Moo Duk Kwan When I was training in Soo Bahk Do as a teenager my original instructor Milberger, Sa Bom Nim required his students to memorize a form of the Moo Do Creed given above as part of our promotion requirements

Special Education further Thoughts

In 1972, the Federal District Court for the District of Columbia held in Mills v. Board of Educ., 348 F. Supp. 866, (D.D.C. 1972), hereafter (Mills), that a school district could not exclude or otherwise deny disabled students access to a free and appropriate public education on the basis of their disability. Additionally, the court held that a school district cannot plead insufficient funding as a reason for excluding a student on the basis of disability; doing so ran contrary to the express purposes of the Education of the Handicapped Act of 1970 (EHA), Pub. L. 91-230, April 13 1970, 84 STAT 121 (1970). "The District of Columbia shall provide to each child of school age a free and suitable publicly supported education regardless of the degree of the child's mental, physical, or emotional disability or impairment. Furthermore, defendants shall not exclude any child resident in the District of Columbia from such publicly-supported education on the basis of a claim of insufficient resources" Mills v. Board of Educ., 348 F. Supp. 866, 878 (D.D.C. 1972). The precedents that have built upon the foundations laid by the decision in Mills illuminate three currents that affect disability law, particularly in the field of education. First, the opinions serve to reinforce Roscoe Pound’s contention that the American law is cyclical in nature, see: (Pound 1982, pp 1-4). Second, they demonstrate that the legal precedents governing the education of disabled individuals are founded upon an evolving framework of models utilized to define the term disability, id: (Altman 97-98 & 100, 2001) (citations and endnotes omitted), and (Kaplan 2000). Last, the successful sustainability of special education mechanisms requires a degree of concurrent federalism., Id: Schaffer v. Weast, 546 U.S. 49 (2005), Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 183 (1982); Little Rock School Dist. v. Mauney, 183 F.3d 816, 830 (CA8 1999). The EHA and its progeny the Education for All Handicapped Children Act of 1975 (EAHCA) Pub. L. 194-142, November 29, 1975 89 STAT.773 (1975); and the Individuals with Disabilities Education Act of 1990 (IDEA), Pub L. 101-476, October 30, 1990, 104 STAT. 1142 codified as 20 U.S.C. § 1400 et seq., (2025) provide the legal framework to ensure that the holding of theMills decision requiring a free appropriate public education be made available to students with disabilities. The mandate enshrined within the EHA and enhanced by its successors the EAHCA and the IDEA governing the development and regulation of special education regimes has been lauded as being a successful exercise in concurrent federalism in the main. Under the auspices of the IDEA, the federal government works in tandem with the individual states to create educational frameworks for the disabled. The federal government entrusts the responsibility of creating the educational systems to the states; but it enacts regulations and guidelines to ensure that the systems developed by states are consistent with the federal mandates established under auspices of the enabling legislation and relevant legal precedent. Justice O’Connor emphasized this point in the majority opinion that she authored in the case of Schaffer v. Weast, 546 U.S. 49 (2005). "IDEA is “frequently described as a model of ‘cooperative federalism.’” Little Rock School Dist. v. Mauney, 183 F.3d 816, 830 (CA8 1999). It “leaves to the States the primary responsibility for developing and executing educational programs for handicapped children, [but] imposes significant requirements to be followed in the discharge of that responsibility.” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 183 (1982). For example, the Act mandates cooperation and reporting between state and federal educational authorities. Participating States must certify to the Secretary of Education that they have “policies and procedures” that will effectively meet the Act’s conditions…". Schaffer v. Weast, 546 U.S. 49, 52 (2005). The continued sustainability and viability of the IDEA, and its directives is of particular interest on a personal level not only as a concerned citizen but, as an individual born with a disability. Divesting handicapped American citizens of educational and vocational opportunities under the guise of streamlining regulations and reducing the size of government would be tantamount to consigning them to a perpetual state of involuntary servitude, in which, any hope of the security that disabled people possess would rest solely on alms granted to them by the able-bodied members of society, thereby consigning handicapped Americans to a secondary or tertiary status within the Republic. Such a shift would also make it more difficult for disabled individuals to acquire employment; and the other necessities required to achieve the promises contained in the Declaration of Independence. Americans with disabilities have the potential of becoming productive citizens possessing the capacity to assist in sustaining our society; if permitted to exercise our right to a “free and appropriate public education” as provided by law. Access to such an education endows them with the proper tools necessary to assist in the continued preservation of the Republic. Relegating people with disabilities to a lower class status is a gross injustice. Billings Learned Hand, Chief Judge of the United States Court of Appeals for the Second Circuit delivered an address at The Legal Aid Society's 75th anniversary celebration. In his speech Judge Hand averred that the greatest threat to the Republic and its democratic ideals is injustice. "If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice” (Hand 1951). If the Republic is to endure the trials and tribulations occasioned by the current state of domestic and international affairs; we must eschew the washed-out ideas that buttress the notion that the disabled possess little that could benefit the nation. The nation must accept what they offer without hesitation, for without them the Republic will ultimately fail. The nation will thrive only when the talents of all Americans are nurtured to their greatest extent possible. Citations: Case Law: Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176; 102 S. Ct. 3034; 73 L. Ed. 2d 690 (1982) Mills v. Board of Educ., 348 F. Supp. 866, 878 (D.D.C. 1972). Schaeffer v. Weast, 546 U.S. 49; 126 S. Ct. 528; 163 L. Ed. 2d 387 (2005). Statutory Enactments: The Education of the Handicapped Act of 1970 (EHA), Pub. L. 91-230, April 13, 1970, 84 STAT 121 (1970). The Education for All Handicapped Children Act of 1975 (EAHCA) Pub. L. 194-142, November 29, 1975, 89 STAT.773 (1975). The Individuals with Disabilities Education Act of 1990 (IDEA), Pub L. 101-476, October 30, 1990, 104 STAT. 1142 codified as 20 U.S.C. § 1400 et seq., (2025). Books and Articles: Altman, Barbara M. "Disability Definitions, Models, Classification Schemes, and Applications." Handbook of Disability Studies. Ed. Gary L. Albrecht, Katherine D. Seelman and Michael Bury. First. Vol. One. Thousand Oaks: Sage Publications Incorporated, 2001. One vol. 97-122. Hardcover. Hand, Billings Learned. The Spirit of Liberty: The Papers and Addresses of Learned Hand. Third Revised Expanded Edition. Edited by Irving Dillard. Vol. One. One vols. New York: A.A. Knopf, 1960. Kaplan, Deborah. "The Definition of Disability: Perspective of the Disability Community." Journal of Health Care Law & Policy 3.2 (2000): 352-364. Online. 22 July 2019. . Pound, Nathan Roscoe. An Introduction to the Philosophy of Law (1954). Reprint of the Revised Edition. Vol. One. New Haven: Yale UP, 1982. One vol

The Relationship between Martial Arts and Politics II

I have studied the martial arts for many years. In my studies I have found that almost uniformly in the Chinese, Japanese, Korean, and Okinawan traditions the concept that an interrelationship exists between the active and passive principles as examplified by the by the Chinese Taoist principle of the Yin and Yang, its Korean variant Um and Yang or its Japanese incarnation of Inyodo. Grandmaster Hwang Kee, the founder of Soo Bahk Do Moo Duk Kwan school of martial arts maintained in the Moo Do Chul Hahk the active principle and its passive balanced by the presence of a neutral element cannot survive in the absence of the other two principles. Only together can the three elements engender the substance and form necessary for the world to function id: (Hwang, 2009). This concept has a practical application within the political realm. I believe that the cyclical nature of politics lends credence to such an application. Indeed if an individual examines the history of the shifts in power within the Congress, and the Presidency a clear cyclical pattern emerges. In light of the constant shifts within politics. I would argue that a successful party is one that develops strategies and tactics founded upon the recognition of the importance of these cycles. Furthermore, the success of a party requires that they utilize their time and resources in such a way that they can maximize their acquisition and conservation of political capital in order to ensure their continued relevance during their time in the minority As such I would contend that the minority party should focus the majority of its activities on retrenchment, consolidation and acquisition of new assets. At this point it seems prudent in my opinion to choose battles with the majority selectively, being careful to avoid a wholesale disengagement and retreat from the press outlets controlled by the majority party, while, embracing only those outlets sympathetic to the positions adopted by the minority. Such an exclusive strategy could nullify efforts to expand the base to draw in more moderates and independent minded people. Some may interpret this as advocating a complete state of passivity while, being in the minority, this view is inaccurate because, the American Republic is such that it requires the presence of a majority, a minority, and an independent element to function in the way envisioned by the Founders.

The Relationship between Martial Arts and Politics I

My martial arts training in Soo Bahk Do Moo Duk Kwan has given me many physical benefits, but as I grow older I find that I have a deeper appreciation of the intellectual aspects of the martial art that I practice, and in particular the philosophical underpinnings of Soo Bahk Do. Indeed the ongoing strife and crisis in the United States, and around the globe reminded me of the importance of cyclical behavior in law, politics, and international relations. The nature of these of these cycles brought to mind the relationship between the Korean principles of Um and Yang, or the Chinese variant of the Yin and Yang as illustrated by the Taegeuk or the Tajitu. Grandmaster Hwang Kee, the founder of Soo Bahk Do Moo Duk Kwan school of martial arts averred in the Moo Do Chul Hahk published posthumously, that the active and passive elements of all cycles recognized and affirmed by occidental and oriental traditions alike are balanced by the presence of a neutral element. The purpose of this neutral force called "Do" is to regulate the cyclical processes and through its moderating, restraining influence inspire the unity between the active and passive elements necessary to give substance and form to the material world. At a cursory glance the active and passive elements seem to be in polar opposition to each other. However, a more intensive closer examination shows these two elemental principles are complementary in nature to the extent that neither principle would exist in the absence of the other. By that I mean to say that for one to exist the other must exist as well, Id: (Hwang, 2009, pp. 124-127). The political system in the United States provides an excellent example of these principles because, the raison d'être for the existence of both the Republican and Democratic parties are to provide alternatives to the other. Without the existence of one, there would be no need for their continued quiddity of it's opponent The American Republic, and its constitutional republican form of government were never intended to be; or to function as a single party nation state. Nor did the members of the Constitutional Convention intend for the Republic's constituent states and territories to become single party entities. The continued sustainability of the Republic depends on the continued viability of both major political parties because they balance each other out serving as a counterweight to check the excesses of the other. In terms of the American political system, it is logical to argue that the neutral force holding the two opposing yet complementary forces in check are the moderate independent centrists voters who do not readily identify with either of the major parties.

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))