I Missed That: "Give Me Free."

LIFE, LIBERTY OR PROPERTY?

If you took an introductory college course in political philosophy, you are familiar with that phrase from John Locke that were modified in the Declaration of Independence, substituting "property" with "pursuit of happiness", or "happyness" for Will Smith fans. And, if you ever endured a first year law school course in property law, you may have heard what we did in our class at Washington & Lee: "Everything you need to know about property law, you already learned in the schoolyard." Well, that is not exactly true, if you continued further on to decedents, trusts and estates law, or regulation of land use, but it's a good start.

And, fresh from a pandemic, where a popular phrase was "it's not about your rights", while persons marched in the streets during a pandemic for justice, razed century old statues, and went out to celebrate in parties during Pride Month that not even a lawsuit could prevent the nation's only physician serving as a state governor to reconsider the prudence of doing things a little differently in a public health crisis might be required, the new rights issue in the midterms has emerged on the issue of abortion, framed under the issue of a woman's right to an abortion, which is never even discussed in Roe v. Wade, a decision about a physician's prohibitions at a compelling point of viability when the state, and its compelling interest, could intervene to protect life. And, in the law, as you may gather from reading some cases, there is a choice of deciding that the subject of abortion is life or property, as discussed in Dred Scott v. Sanford and in U.S. v. Amistad.

In a Fourth Circuit case, involving a judge and a refund, i.e., Virginia Elec. Power & Co. v. Sun Shipping and Drydock Co., 539 F.2d 357 (4th Cir. 1976), the reviewing court decided that the question was “closely analogous to what is known as a bare expectancy in property law”, very similar to the way that the question of viability is posed as the central issue in Roe v. Wade, and, in a court, especially as issues are refined in assignments of error on appeal, how a question is presented in framed in drafting choices will determine the rule that will be utilized to decide the case. A judge is not going to do your homework for you, generally, and is not there to be your attorney, or is not supposed to be.

Let's use the "clump of cells" argument, and consider what can be done with this property taken from this Amistad voyage. Can it be sold and regulated in commerce? Did we have an argument about vaccines and fetal lines? Then it is then property.

But, in this midterm election year, consider a line that is in the actual opinion, but not in the movie that had the African dude who made like one more film, where he played an African with Leonardo di Caprio and then ran out of African roles, where Justice Story wrote: "When the Amistad arrived, she was in possession of the negroes, asserting their freedom, and in no sense could they possibly intend to import themselves here, as slaves or for sale as slaves."

There remains a great debate in science regarding the expectancy inherent in a virus without a living host, which, despite a limited time of viability outside the host, is still considered, by some, as life, which is an argument growing in support, and some, who are seeking to develop a good definition of life to use in space exploration in search of other intelligent life in the cosmos that may not conform to what is found on earth believe this is an important question to resolve.

And, post pandemic, Dr. Rochelle Walensky has said this virus isn't stupid, Dr. Tony Fauci has said that this virus has fooled us before, and Dr. Tedros Adhanom Ghebreyesus has said we underestimate this virus at our peril, while folks got vaccinated, donned facial coverings, cancelled vacations, closed businesses and stayed away from school from something smaller than a clump of cells that apparently has less value and importance than a novel coronavirus, measured in nanoparticle units and bigger than God.