Supreme Court – Survive with Will – Thoughtful Analysis & Perceptions

McCulloch v Maryland – SCOTUS

Will Hemingway — Fri, 15 Jan 2016 14:08:16 +0000

McCulloch v. Maryland - 1819

Explanatory Note:

McCulloch v. Maryland, the Supreme Court allowed for implied powers of the federal government according to the "necessary and proper" clause of the Constitution.

This case allowed the powers of the federal government to expand and evolve beyond that specifically written in the Constitution. It allowed for the government to shed the last vestiges of the Anti-Federalist / Jeffersonian view of the USA based on limited size of government, a lose federation of states all individually equal and powerful. The ruling opened the door for the unbridled expansion of the central government and its influence.

This Supreme Court Case addressed the issue of Federal power and commerce.

Chief Justice John Marshall handed down one of his most important decisions regarding the expansion of Federal power. This case involved the power of Congress to charter a bank, which sparked the even broader issue of the division of powers between state and the Federal Government. established the supremacy of the federal government over state's rights.

The full text of the ruling is below:

Transcript of McCulloch v. Maryland (1819)

Chief Justice Marshall delivered the opinion of the Court.

In the case now to be determined, the defendant, a sovereign State, denies the obligation of a law enacted by the legislature of the Union, and the plaintiff, on his part, contests the validity of an act which has been passed by the legislature of that State. The constitution of our country, in its most interesting and vital parts, is to be considered; the conflicting powers of the government of the Union and of its members, as marked in that constitution, are to be discussed; and an opinion given, which may essentially influence the great operations of the government. No tribunal can approach such a question without a deep sense of its importance, and of the awful responsibility involved in its decision. But it must be decided peacefully, or remain a source of hostile legislation, perhaps of hostility of a still more serious nature; and if it is to be so decided, by this tribunal alone can the decision be made. On the Supreme Court of the United States has the constitution of our country devolved this important duty.

The first question made in the cause is, has Congress power to incorporate a bank?

It has been truly said that this can scarcely be considered as an open question, entirely unprejudiced by the former proceedings of the nation respecting it. The principle now contested was introduced at a very early period of our history, has been recognized by many successive legislatures, and has been acted upon by the judicial department, in cases of peculiar delicacy, as a law of undoubted obligation. . . .

The power now contested was exercised by the first Congress elected under the present constitution. The bill for incorporating the bank of the United States did not steal upon an unsuspecting legislature, and pass unobserved. Its principle was completely understood, and was opposed with equal zeal and ability. After being resisted, first in the fair and open field of debate, and afterwards in the executive cabinet, with as much persevering talent as any measure has ever experienced, and being supported by arguments which convinced minds as pure and as intelligent as this country can boast, it became a law. The original act was permitted to expire; but a short experience of the embarrassments to which the refusal to revive it exposed the government, convinced those who were most prejudiced against the measure of its necessity, and induced the passage of the present law. It would require no ordinary share of intrepidity to assert that a measure adopted under these circumstances was a bold and plain usurpation, to which the constitution gave no countenance.

These observations belong to the cause; but they are not made under the impression that, were the question entirely new, the law would be found irreconcilable with the constitution.

In discussing this question, the counsel for the State of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent States. The powers of the general government, it has been said, are delegated by the States, who alone are truly sovereign; and must be exercised in subordination to the States, who alone possess supreme dominion.

It would be difficult to sustain this proposition. The Convention which framed the constitution was indeed elected by the State legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing Congress of the United States, with a request that it might "be submitted to a convention of delegates, chosen in each State by the people thereof, under the recommendation of its legislature, for their assent and ratification." This mode of proceeding was adopted; and by the convention, by Congress, and by the State legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in convention. It is true, they assembled in their several States -- and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments.

From these conventions the constitution derives its whole authority. The government proceeds directly from the people; is "ordained and established" in the name of the people; and is declared to be ordained, "in order to form a more perfect union, establish justice, ensure domestic tranquility, and secure the blessings of liberty to themselves and to their posterity." The assent of the States, in their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the State governments. The constitution, when thus adopted, was of complete obligation, and bound the State sovereignty. . . .

of this fact on the case), is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.

This government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, [is] now universally admitted. But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, as long as our system shall exist. . . .

Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word "expressly," and declares only that the powers "not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people"; thus leaving the question, whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the articles of confederation, and probably omitted it to avoid those embarrassments. A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the ninth section of the 1st article, introduced? It is also, in some degree, warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a constitution we are expounding.

Although, among the enumerated powers of government, we do not find the word "bank," or "incorporation," we find the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are entrusted to its government. It can never be pretended that these vast powers draw after them others of inferior importance, merely because they are inferior. Such an idea can never be advanced. But it may with great reason be contended, that a government, entrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be entrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution by withholding the most appropriate means. . . require it) which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise by withholding a choice of means? If, indeed, such be the mandate of the constitution, we have only to obey; but that instrument does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation, if the existence of such a being be essential to the beneficial exercise of those powers. It is, then, the subject of fair inquiry, how far such means may be employed.

It is not denied, that the powers given to the government imply the ordinary means of execution. That, for example, of raising revenue, and applying it to national purposes, is admitted to imply the power of conveying money from place to place, as the exigencies of the nation may require, and of employing the usual means of conveyance. But it is denied that the government has its choice of means; or, that it may employ the most convenient means, if, to employ them, it be necessary to erect a corporation. . . .

The government which has a right to do an act, and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means; and those who contend that it may not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception. . . . The power of creating a corporation, though appertaining to sovereignty, is not like the power of making war, or levying taxes, or of regulating commerce, a great substantive and independent power, which cannot be implied as incidental to other powers, or used as a means of executing them. It is never the end for which other powers are exercised, but a means by which other objects are accomplished. . . . The power of creating a corporation is never used for its own sake, but for the purpose of effecting something else. No sufficient reason is, therefore, perceived, why it may not pass as incidental to those powers which are expressly given, if it be a direct mode of executing them.

But the constitution of the United States has not left the right of Congress to employ the necessary means, for the execution of the powers conferred on the government, to general reasoning. To its enumeration of powers is added that of making "all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution, in the government of the United States, or in any department thereof."

The counsel for the State of Maryland have urged various arguments, to prove that this clause, though in terms a grant of power, is not so in effect; but is really restrictive of the general right, which might otherwise be implied, of selecting means for executing the enumerated powers. . . .

Almost all compositions contain words, which, taken in their rigorous sense, would convey a meaning different from that which is obviously intended. It is essential to just construction, that many words which import something excessive should be understood in a more mitigated sense -- in that sense which common usage justifies. The word "necessary" is of this description. It has not a fixed character peculiar to itself. It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary. To no mind would the same idea be conveyed by these several phrases. This comment on the word is well illustrated by the passage cited at the bar, from the 20th section of the 1st article of the constitution. It is, we think, impossible to compare the sentence which prohibits a State from laying "imposts, or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws," with that which authorizes Congress "to make all laws which shall be necessary and proper for carrying into execution" the powers of the general government, without feeling a conviction that the convention understood itself to change materially the meaning of the word "necessary," by prefixing the word "absolutely." This word, then, like others, is used in various senses; and, in its construction, the subject, the context, the intention of the person using them, are all to be taken into view.

Let this be done in the case under consideration. The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers, to insure, as far as human prudence could insure, their beneficial execution. This could not be done by confiding the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances. If we apply this principle of construction to any of the powers of the government, we shall find it so pernicious in its operation that we shall be compelled to discard it. . . .

The result of the most careful and attentive consideration bestowed upon this clause is, that if it does not enlarge, it cannot be construed to restrain the powers of Congress, or to impair the rights of the legislature to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the government. If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting the right to legislate on that vast mass of incidental powers which must be involved in the constitution, if that instrument be not a splendid bauble.

We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. . . .

Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.

After this declaration, it can scarcely be necessary to say that the existence of State banks can have no possible influence on the question. No trace is to be found in the constitution of an intention to create a dependence of the government of the Union on those of the States, for the execution of the great powers assigned to it. Its means are adequate to its ends; and on those means alone was it expected to rely for the accomplishment of its ends. To impose on it the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the constitution. But were it otherwise, the choice of means implies a right to choose a national bank in preference to State banks, and Congress alone can make the election.

After the most deliberate consideration, it is the unanimous and decided opinion of this Court, that the act to incorporate the Bank of the United States is a law made in pursuance of the constitution, and is a part of the supreme law of the land. . . .

It being the opinion of the Court, that the act incorporating the bank is constitutional; and that the power of establishing a branch in the State of Maryland might be properly exercised by the bank itself, we proceed to inquire --

Whether the State of Maryland may, without violating the constitution, tax that branch?

That the power of taxation is one of vital importance; that it is retained by the States; that it is not abridged by the grant of a similar power to the government of the Union; that it is to be concurrently exercised by the two governments: are truths which have never been denied. But, such is the paramount character of the constitution, that its capacity to withdraw any subject from the action of even this power, is admitted. The States are expressly forbidden to lay any duties on imports or exports, except what may be absolutely necessary for executing their inspection laws. If the obligation of this prohibition must be conceded, the same paramount character would seem to restrain, as it certainly may restrain, a State from such other exercise of this power; as is in its nature incompatible with, and repugnant to, the constitutional laws of the Union. . . .

On this ground the counsel for the bank place its claim to be exempted from the power of a State to tax its operations. There is no express provision for the case, but the claim has been sustained on a principle which so entirely pervades the constitution, is so intermixed with the materials which compose it, so interwoven with its web, so blended with its texture, as to be incapable of being separated from it, without rending it into shreds.

This great principle is, that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them. From this, which may be almost termed an axiom, other propositions are deduced as corollaries, on the truth or error of which, and on their application to this case, the cause has been supposed to depend. These are, 1st. that a power to create implies a power to preserve. 2nd. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and to preserve. 3d. That where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme. . . .

That the power of taxing by the States may be exercised so as to destroy it, is too obvious to be denied. But taxation is said to be an absolute power, which acknowledges no other limits than those expressly prescribed in the constitution, and like sovereign power of every other description, is trusted to the discretion of those who use it. But the very terms of this argument admit that the sovereignty of the State, in the article of taxation itself, is subordinate to, and may be controlled by, the constitution of the United States. How far it has been controlled by that instrument must be a question of construction. In making this construction, no principle not declared, can be admissible, which would defeat the legitimate operations of a supreme government. It is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence. This effect need not be stated in terms. It is so involved in the declaration of supremacy, so necessarily implied in it, that the expression of it could not make it more certain. We must, therefore, keep it in view while construing the constitution.

The argument on the part of the State of Maryland is, not that the States may directly resist a law of Congress, but that they may exercise their acknowledged powers upon it, and that the constitution leaves them this right in the confidence that they will not abuse it.

Before we proceed to examine this argument, and to subject it to the test of the constitution, we must be permitted to bestow a few considerations on the nature and extent of this original right of taxation, which is acknowledged to remain with the States. It is admitted that the power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applicable, to the utmost extent to which the government may choose to carry it. The only security against the abuse of this power, is found in the structure of the government itself. In imposing a tax the legislature acts upon its constituents. . . .

The sovereignty of a State extends to everything which exists by its own authority, or is so introduced by its permission; but does it extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States? We think it demonstrable that it does not. Those powers are not given by the people of a single State. They are given by the people of the United States, to a government whose laws, made in pursuance of the constitution, are declared to be supreme. Consequently, the people of a single State cannot confer a sovereignty which will extend over them.

If we measure the power of taxation residing in a State, by the extent of sovereignty which the people of a single State possess, and can confer on its government, we have an intelligible standard, applicable to every case to which the power may be applied. We have a principle which leaves the power of taxing the people and property of a State unimpaired; which leaves to a State the command of all its resources, and which places beyond its reach, all those powers which are conferred by the people of the United States on the government of the Union, and all those means which are given for the purpose of carrying those powers into execution. We have a principle which is safe for the States, and safe for the Union. We are relieved, as we ought to be, from clashing sovereignty; from interfering powers; from a repugnancy between a right in one government to pull down what there is an acknowledged right in another to build up; from the incompatibility of a right in one government to destroy what there is a right in another to preserve. We are not driven to the perplexing inquiry, so unfit for the judicial department, what degree of taxation is the legitimate use, and what degree may amount to the abuse of the power. The attempt to use it on the means employed by the government of the Union, in pursuance of the constitution, is itself an abuse, because it is the usurpation of a power which the people of a single State cannot give.

We find, then, on just theory, a total failure of this original right to tax the means employed by the government of the Union, for the execution of its powers. The right never existed, and the question whether it has been surrendered, cannot arise.

But, waiving this theory for the present, let us resume the inquiry, whether this power can be exercised by the respective States, consistently with a fair construction of the constitution?

That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance, in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied. But all inconsistencies are to be reconciled by the magic of the word CONFIDENCE. Taxation, it is said, does not necessarily and unavoidably destroy. To carry it to the excess of destruction would be an abuse, to presume which, would banish that confidence which is essential to all government.

But is this a case of confidence? Would the people of any one State trust those of another with a power to control the most insignificant operations of their State government? We know they would not. Why, then, should we suppose that the people of any one State should be willing to trust those of another with a power to control the operations of a government to which they have confided their most important and most valuable interests? In the legislature of the Union alone, are all represented. The legislature of the Union alone, therefore, can be trusted by the people with the power of controlling measures which concern all, in the confidence that it will not be abused. This, then, is not a case of confidence, and we must consider it as it really is.

If we apply the principle for which the State of Maryland contends, to the constitution generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the government, and of prostrating it at the foot of the States. The American people have declared their constitution, and the laws made in pursuance thereof, to be supreme; but this principle would transfer the supremacy, in fact, to the States.

If the States may tax one instrument, employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent rights; they may tax the papers of the custom-house; they may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the States. . . .

The Court has bestowed on this subject its most deliberate consideration. The result is a conviction that the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the constitution has declared.

We are unanimously of opinion, that the law passed by the legislature of Maryland, imposing a tax on the Bank of the United States, is unconstitutional and void.

This opinion does not deprive the States of any resources which they originally possessed. It does not extend to a tax paid by the real property of the bank, in common with the other real property within the State, nor to a tax imposed on the interest which the citizens of Maryland may hold in this institution, in common with other property of the same description throughout the State. But this is a tax on the operations of the bank, and is, consequently, a tax on the operation of an instrument employed by the government of the Union to carry its powers into execution. Such a tax must be unconstitutional.

Griswold v CT – SCOTUS

Will Hemingway — Fri, 15 Jan 2016 14:08:14 +0000

SurviveWithWill.com PracticeSurvival.com's Useful Info Landmark Legal Cases Griswold v CT Read More

Roe V. Wade – SCOTUS

Will Hemingway — Fri, 15 Jan 2016 14:08:13 +0000

Roe v. Wade, 410 U.S. 113 (1973) (USSC+)

Case Information

Roe v. Wade

No. 70-18

SUPREME COURT OF THE UNITED STATES

410 U.S. 113

December 13, 1971 Reargued October 11, 1972

January 22, 1973

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS

Syllabus

A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother’s life. A licensed physician (Hallford), who had two state abortion prosecutions pending against him, was permitted to intervene. A childless married couple (the Does), the wife not being pregnant, separately attacked the laws, basing alleged injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife’s health. A three-judge District Court, which consolidated the actions, held that Roe and Hallford, and members of their classes, had standing to sue and presented justifiable controversies. Ruling that declaratory, though not injunctive, relief was warranted, the court declared the abortion statutes void as vague and overbroadly infringing those plaintiffs’ Ninth and Fourteenth Amendment rights. The court ruled the Does’ complaint not justifiable. Appellants directly appealed to this Court on the injunctive rulings, and appellee cross-appealed from the District Court’s grant of declaratory relief to Roe and Hallford.

Held:

1. While 28 U.S.C. Â§ 1253 authorizes no direct appeal to this Court from the grant or denial of declaratory relief alone, review is not foreclosed when the case is properly before the Court on appeal from specific denial of injunctive relief and the arguments as to both injunctive and declaratory relief are necessarily identical. P. 123 .

2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129 .

(a) Contrary to appellee’s contention, the natural termination of Roe’s pregnancy did not moot her suit. Litigation involving pregnancy, which is “capable of repetition, yet evading review,” is an exception to the usual federal rule that an actual controversy [p*114] must exist at review stages, and not simply when the action is initiated. Pp. 124-125 .

(b) The District Court correctly refused injunctive, but erred in granting declaratory, relief to Hallford, who alleged no federally protected right not assertable as a defense against the good faith state prosecutions pending against him. Samuels v. Mackell, 401 U.S. 66. Pp. 125-127 .

(c) The Does’ complaint, based as it is on contingencies, any one or more of which may not occur, is too speculative to present an actual case or controversy. Pp. 127-129 .

3. State criminal abortion laws, like those involved here, that except from criminality only a lifesaving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life, each of which interests grows and reaches a “compelling” point at various stages of the woman’s approach to term. Pp. 147-164 .

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician. Pp. 163 , 164 .

Held:

2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129 .

(c) The Does’ complaint, based as it is on contingencies, any one or more of which may not occur, is too speculative to present an actual case or controversy. Pp. 127-129 .

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. Pp. 163 , 164 .

(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Pp. 163-164 ; 164-165 .

4. The State may define the term “physician” to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined. P. 165 .

5. It is unnecessary to decide the injunctive relief issue, since the Texas authorities will doubtless fully recognize the Court’s ruling [p*115] that the Texas criminal abortion statutes are unconstitutional. P. 166 .

314 F.Supp. 1217, affirmed in part and reversed in part.

Opinions

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and DOUGLAS, BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined. BURGER, C.J., post, p. 207 , DOUGLAS, J., post, p. 209 , and STEWART, J., post, p. 167 , filed concurring opinions. WHITE, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 221 . REHNQUIST, J., filed a dissenting opinion, post, p. 171 . [p*116]

BLACKMUN, J., Opinion of the Court

MR. JUSTICE BLACKMUN delivered the opinion of the Court.

This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p. 179, present constitutional challenges to state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in many States for approximately a century. The Georgia statutes, in contrast, have a modern cast, and are a legislative product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and techniques, and of new thinking about an old issue.

We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.

In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.

Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we [p*117] have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man’s attitudes toward the abortion procedure over the centuries. We bear in mind, too, Mr. Justice Holmes’ admonition in his now-vindicated dissent in Lochner v. New York, 198 U.S. 45 , 76 (1905):

[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State’s Penal Code. [n1] These make it a crime to “procure an abortion,” as therein [p*118] defined, or to attempt one, except with respect to “an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.” Similar statutes are in existence in a majority of the States. [n2] [p*119]

Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c. 49, Â§ 1, set forth in 3 H. Gammel, Laws of Texas 1502 (1898). This was soon modified into language that has remained substantially unchanged to the present time. See Texas Penal Code of 1857, c. 7, Arts. 531-536; G. Paschal, Laws of Texas, Arts. 2192-2197 (1866); Texas Rev.Stat., c. 8, Arts. 536-541 (1879); Texas Rev.Crim.Stat., Arts. 1071-1076 (1911). The final article in each of these compilations provided the same exception, as does the present Article 1196, for an abortion by “medical advice for the purpose of saving the life of the mother.” [n3] [p*120]

Jane Roe, [n4] a single woman who was residing in Dallas County, Texas, instituted this federal action in March 1970 against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes.

Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion “performed by a competent, licensed physician, under safe, clinical conditions”; that she was unable to get a “legal” abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint, Roe purported to sue “on behalf of herself and all other women” similarly situated.

James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe’s action. In his complaint, he alleged that he had been arrested previously for violations of the Texas abortion statutes, and [p*121] that two such prosecutions were pending against him. He described conditions of patients who came to him seeking abortions, and he claimed that for many cases he, as a physician, was unable to determine whether they fell within or outside the exception recognized by Article 1196. He alleged that, as a consequence, the statutes were vague and uncertain, in violation of the Fourteenth Amendment, and that they violated his own and his patients’ rights to privacy in the doctor-patient relationship and his own right to practice medicine, rights he claimed were guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.

John and Mary Doe, [n5] a married couple, filed a companion complaint to that of Roe. They also named the District Attorney as defendant, claimed like constitutional deprivations, and sought declaratory and injunctive relief. The Does alleged that they were a childless couple; that Mrs. Doe was suffering from a “neural-chemical” disorder; that her physician had “advised her to avoid pregnancy until such time as her condition has materially improved” (although a pregnancy at the present time would not present “a serious risk” to her life); that, pursuant to medical advice, she had discontinued use of birth control pills; and that, if she should become pregnant, she would want to terminate the pregnancy by an abortion performed by a competent, licensed physician under safe, clinical conditions. By an amendment to their complaint, the Does purported to sue “on behalf of themselves and all couples similarly situated.”

The two actions were consolidated and heard together by a duly convened three-judge district court. The suits thus presented the situations of the pregnant single woman, the childless couple, with the wife not pregnant, [p*122] and the licensed practicing physician, all joining in the attack on the Texas criminal abortion statutes. Upon the filing of affidavits, motions were made for dismissal and for summary judgment. The court held that Roe and members of her class, and Dr. Hallford, had standing to sue and presented justifiable controversies, but that the Does had failed to allege facts sufficient to state a present controversy, and did not have standing. It concluded that, with respect to the requests for a declaratory judgment, abstention was not warranted. On the merits, the District Court held that the

fundamental right of single women and married persons to choose whether to have children is protected by the Ninth Amendment, through the Fourteenth Amendment,

and that the Texas criminal abortion statutes were void on their face because they were both unconstitutionally vague and constituted an overbroad infringement of the plaintiffs’ Ninth Amendment rights. The court then held that abstention was warranted with respect to the requests for an injunction. It therefore dismissed the Does’ complaint, declared the abortion statutes void, and dismissed the application for injunctive relief. 314 F.Supp. 1217, 1225 (ND Tex.1970).

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Posse Comitatus

Will Hemingway — Fri, 15 Jan 2016 14:08:02 +0000

Posse Comitatus

United States Code

TITLE 18 - CRIMES AND CRIMINAL PROCEDURE

PART I - CRIMES

CHAPTER 67 - MILITARY AND NAVY

Sec. 1385. Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

Explanatory Note:

This law was created to assure that the political leaders of the USA cannot utilize the US Military to enforce laws or make acts of aggression upon American Citizens on the soil of the USA.

Many people have the misconception that the posse comitatus is an absolute ban of the use of US military on home soil against American Citizens. In fact it is not. If you have any question all that you have to is read the one phrase; in cases and under circumstances expressly authorized by the Constitution or Act of Congress.

Marbury v Madison – SCOTUS

Will Hemingway — Fri, 15 Jan 2016 14:08:01 +0000

Marbury v Madison

Background and Explanation

Marbury v. Madison was a historic case that established the precedent of judicial review. The ruling cemented the authority of the Judicial Branch to declare a law unconstitutional and firmly established the checks and balances the founding fathers had intended.

Just as George Washington helped shape the actual form that the executive branch would take, so the third chief justice, John Marshall, shaped the role that the courts would play.

Under the administrations of Washington and his successor, John Adams, only members of the ruling Federalist Party were appointed to the bench, and under the terms of the Constitution, they held office for life during “good behavior.” Thus, when the opposing republicans won the election of 1800, the Jeffersonians found that while they controlled the presidency and Congress, the Federalists still dominated the judiciary. One of the first acts of the new administration was to repeal the Judiciary Act of 1800, which had created a number of new judgeships. Although President Adams had attempted to fill the vacancies prior to the end of his term, a number of commissions had not been delivered, and one of the appointees, William Marbury, sued Secretary of State James Madison to force him to deliver his commission as a justice of the peace.

The new chief justice, John Marshall, understood that if the Court awarded Marbury a writ of mandamus (an order to force Madison to deliver the commission) the Jefferson administration would ignore it, and thus significantly weaken the authority of the courts. On the other hand, if the Court denied the writ, it might well appear that the justices had acted out of fear. Either case would be a denial of the basic principle of the supremacy of the law.

Marshall’s decision in this case has been hailed as a judicial tour de force. In essence, he declared that Madison should have delivered the commission to Marbury, but then held that the section of the Judiciary Act of 1789 that gave the Supreme Court the power to issue writs of mandamus exceeded the authority allotted the Court under Article III of the Constitution, and was therefore null and void. Thus he was able to chastise the Jeffersonians and yet not create a situation in which a court order would be flouted.

The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since.

The Court would not declare another act of Congress unconstitutional until 1857, and it has used that power sparingly. But through its role as arbiter of the Constitution, it has, especially in the twentieth century, been the chief agency for the expansion of individual rights.

For further reading: George L. Haskins and Herbert A. Johnson, Foundations of Power: John Marshall, 1801-1815 (1981); Donald O. Dewey, Marshall v. Jefferson: The Political Background of Marbury v. Madison (1970).

Â¹ JMU Editor: “Jeffersonians” and “Republicans” refer to the adherents of the same party, the party of Thomas Jefferson and James Madison, which at this web site will consistently be referred to as the Democratic-Republican party. The “Federalists” were the party of John Adams and Alexander Hamilton For more on the party system, go to “Two Parties and the First Two Party System” in “James Madison: His Legacy.” [Back up to note marker.]

Prevention of Cruelty to, and Protection of, Children Act – 1889

Roe v. Wade – 1973

Landmark case regarding the right of a woman to have an abortion.

This case is constantly misinterpreted; the case was a ruling on a very narrow scenario based on declaring the Texas Abortion Law to be too vague and an additional claim of the violation of the 9 th ammendment rights.

The case has been interpreted and touted as outrightly declaring unbridaled abortion to be legal and that the “State” had no right to regulate it. This in fact is a gross exaggeration if not outright lie.

Ticks and Other

Insect Vector-Borne Health Risks

TEOTOWAKI Will Never Happen

The 3’s of Survival Are Worthless Tripe

Knowledge Is NOT Power !!

Learn What Is

Anti-Government & Other

Counter Productive Attitudes

Radioactive Fallout in Water Soon to Hit

the West Coast of the USA and Canada

Prudent Steps to Prepare

Hot – Breaking Topics & News

Do you have a Faraday Cage?

Earthquakes Happen Everyday What Should You Know?

Earthquake Live Feed Interactive Map

Never Heat Food or Water in Plastic

With Recycle Codes 1, 3, or 7

PETE or PVC Plastic NEVER !!

What should you do if you breakdown on the highway?

Comfort & Routine Is Your Survival

Military Styled BugOut Plans Don’t Work

I Choose the Country Lifestyle

Urban or Rural?

If You BugOut Without A Plan

You Are A Refugee

Winter Travel in Your Vehicle? Have a Kit

If the roads are flooded what should you do?

I came around the corner right into a giant puddle

Now what should I do?

If You Are Away From Home Be Prepared

You Might Not Be Able to Get Home

Water – What You Need to Know

Silver Solutions the Good, the Bad and the Facts

Understand Social Order and Teamwork

If You Want to Survive a Disaster – Sociology 101

Everything You Need to Know to be a Leader

Colloidial or Ionic Silver

Urban Dweller Perspectives on Survival

Learn How to Cut Your WayThrough the BS and Get the True Facts

Outdoor & Hiking Survival Skills & Tips

General Preparedness Tips & Skills

For Personal Home & Businesses

Urban Dwelling Requires

Special Survival Skills Every Day

Things That You Need to Know

If You Are A Hunter or Survivalist

If You Are A Prepper

These Skills Are For You

Do You Drive Your 4 Wheel Drive Vehicle

Off Road? Then Check Out

Will’s Wheeling Our Companion Site

If you really want to survive, You need to understand how to build a team, lead it, create a societal structure, and history

Understand water; What you need, How stay hydrated, How to harvest it, How to carry it, How to Treat, Filter, and Purify It

Every time that you get into your vehicle; car, truck, van, etc. You are at risk. Even in the parking lot. Before you go on the road prepare and educate yourself.

Find Lots of Great Information

From Governmental Sources

Environmental, Legal, Government, & More

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Be reasonable, responsible, take proper precautions, and exercise common sense.

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Gibbons v Ogden – SCOTUS

Will Hemingway — Thu, 27 Feb 2014 05:17:00 +0000

Welcome to All Legal ImmigrantsThank You for Respecting Our Laws and Borders

Please Assimilate So That We All Benefit

My regular listeners have heard my take on this but I thought it was necessary to post it on the site for those who have not or can’t.

Since the time of its inception the USA has welcomed persons from every corner of the earth. Every race, creed and color was accepted.

Problems, complications and issues arose. In the end, the newcomers assimilated. They learned the language. They joined the workforce and became productive members of the society.

There is no difference between the idea of immigrant assimilation and that of joining a club or organization. Let’s say that you want to go camping, earn merit badges and do the Klondike derby with the boy scouts. You know that in order to do these things, you must join the Boy Scouts. So, join you do. You must conform to the organization’s rules. The requirements for being a Boy Scout are as follows:

Boy Scout Program Membership

Boy Scouting, one of the traditional membership divisions of the BSA, is available to boys who have earned the Arrow of Light Award or have completed the fifth grade, or who are 11 through 17 years old. The program achieves the BSA’s objectives of developing character, citizenship, and personal fitness qualities among youth by focusing on a vigorous program of outdoor activities.

Uniform

The uniform makes the Boy Scout troop visible as a force for good and creates a positive youth image in the community. Boy Scouting is an action program, and wearing the uniform is an action that shows each Boy Scout’s commitment to the aims and purposes of Scouting. The uniform gives the Boy Scout identity in a world brotherhood of youth who believe in the same ideals. The uniform is practical attire for Boy Scout activities and provides a way for Boy Scouts to wear the badges that show what they have accomplished.

OK, so you understand the rules of membership. You don’t like them, but you must conform to them if you wish to reap the benefits of membership. Why must these requirements exist? You don’t want to wear that dorky uniform anyway. Well, sacrifice, structure, self-discipline, humility, respect for authority and leaders are all parts of maturity, character and success. Conforming to rules and structure allows each individual member to share common experiences and grow as one, as a member of the team. Each member, still maintaining their individualism but growing and learning as one. The parts assimilate into the whole creating a strong team. They share a common goal, work together for the good of the whole and learn to respect the value of one. Joining and assimilating does not diminish the individual, it broadens the perspective and through an understanding of others, allows us to know ourselves better. It empowers the individual.

A Scout who assimilates into the organization does the following:

• Learns the rules

• Memorizes the oath

• Wears the uniform

• Learns the language of a Boy Scout

◦ Scouting terms

◦ Merit badges

◦ Leadership titles and structure

The Scout reaps the rewards of assimilation:

• Participates in the activities

◦ Camping

◦ Hiking

◦ Crafts

◦ Many more

• Experiences the feeling of “belonging” and team

• Learns new skills

• Matures

• Becomes more aware of the world he lives in

• He reaps the benefit of the participation

If the new Scout fails to meet the membership requirement, efforts are made to help him to do so. If in the end the Scout refuses to meet the requirements his membership is terminated. He can no longer enjoy the benefits of membership.

Society is the same. At least it should be. Throughout the centuries of man’s recorded history conquering forces have taken over countries and forced their populaces to change their language, abandon their cultures and altered there way of life. That form of forceful assimilation is not healthy, generally fraught with conflict and is rarely necessary (though sometimes unavoidable).

A Scout who assimilates into the organization does the following:

• Learns the rules

• Memorizes the oath

• Wears the uniform

• Learns the language of a Boy Scout

◦ Scouting terms

◦ Merit badges

◦ Leadership titles and structure

The Scout reaps the rewards of assimilation:

• Participates in the activities

◦ Camping

◦ Hiking

◦ Crafts

◦ Many more

• Experiences the feeling of “belonging” and team

• Learns new skills

• Matures

• Becomes more aware of the world he lives in

• He reaps the benefit of the participation

America’s influence around the world is astonishing. Today’s world is one of rapid change, technological advancement and social upheaval. Technology is a universal factor in every culture in every corner of our world. The language of technology and business around the world is American English. Many of the technical terms and business words do not even exist in other languages. Our music, automotive technologies, computer advances and more permeate the world.

When a person enters a country with the intent to take up residency, they should assimilate into that country’s culture. Learn the language, conform to the social and fashion culture of the locale. Having assimilated, they will reap the benefits of the country and its societal rewards.

Whether it is here, Japan, Germany, Iraq or anywhere persons who desire citizenship and permanent residency must assimilate. Assimilation is positive for the person and mandatory for the survival of the country and its culture. Every attempt to ignore this fact has ended in abject failure. California’s attempt at bilingual education and government is a classic example.

Assimilation does not destroy the heritage it grows and enhances the heritage. It allows the person to celebrate the good in there cultural heritage, while it allows them to break free of the fetters of the problems of the past.

The assimilation of people with broad heritages and cultures into a single society creates a stronger more successful society. It enhances the opportunities and potential of success for all.

Will

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