Wednesday, January 28, 2015

SUPREME DICTATORS


Thomas McIntyre Cooley, the renowned nineteenth century American jurist, insisted that written constitutions should be interpreted as intended by the people who wrote them and who ratified them.

He believed that any judge who tried to change the meaning of the constitution to fit the changing of popular opinion would be guilty of misfeasance in office.

In fact, he said that the very reason to have a written constitution is to protect the fundamental law of the land from being ignored or changed by the people in government.

The cases involving gay marriage now wending their way through the hallowed halls of the United States Supreme Court are particularly important because they present in stark clarity the issue of whether our federal Constitution means what it was written to mean or whether it means what nine unelected men and women think it would, should or might mean if it were written today.

Certainly no lawyer briefing or arguing this case would claim that the men who wrote and ratified the United States Constitution in the last decades of the eighteenth century or those to drafted and adopted the Fourteenth Amendment in the middle of the nineteenth century intended that by assuring equal protection of the laws they meant to authorize or condone sexual activity between persons of the same sex or to elevate it to the legal status of matrimony.

And certainly none of the nine Justices will attempt to justify voting to legalize gay marriage as being required, suggested or even permitted by the original intent of the founders or the Reconstruction Congress.

No indeed. That is not what will be said during the oral arguments, and it is not what we will read in the judicial opinions. What the lawyers will debate and what the Justices will discuss and decide is not what the words “equal protection of the law” meant in 1789 or 1868. No, they will be debating what those words mean to people in 2015.

Now here is where legal theory comes into conflict with democracy. Deciding what words mean to the people of today is simply another way of trying to measure public opinion.

Do the general run of the American people think that giving everyone the equal protection of the laws requires legalizing gay marriage?

The Supreme Court of the United States, on more than one occasion has decided a case based on what a majority of the Justices believed to be “an emerging public consensus.”

Letting judges decide cases based on public opinion is wrong. It is bad law and it is bad politics. Even worse is letting them decide cases based on “emerging” public opinion.  When they say that something represents the “emerging public consensus” they are admitting that the majority of he people still think otherwise, but pretty soon they will agree with the Court.

Appellate judges are like second term Presidents. They are motivated by the desire to be admired, respected, loved and famous. They think about their ‘legacy.’ How will historians treat them?  And, of course, they know that historians read old newspapers, so judges like favorable editorials.

Judges like to make ‘historic’ decisions; decisions that make a difference. Landmark cases. And they know that the American people have great respect for their Supreme Court. The building, the aura, the security, the lines of visitors who trek daily through the halls and whisper reverently in the empty courtroom; the Justices live and work among these reminders of their power and importance.

Justices know that their decisions influence the way people think. When they talk about ‘emerging’ public consensus, they know full well that their approval of gay marriage will move the ball closer to the goal they approve and predict. 

No honest, patriotic American would deny the people of Michigan the right, either directly or through the act of their legislature, to legalize gay marriage.

But no honest, patriotic American should tolerate that decision being made by the Justices of the Supreme Court.

Monday, January 26, 2015

WHO DECIDES?


In 2004, the people of Michigan voted on Proposition 04-2, a proposed amendment to the State’s constitution which defined marriage as a contract between one eligible male and one eligible female.

The amendment was adopted by a significant 58.6% of the voters, with 2,698,077 voting in favor of the proposal and 1,904,319 voting against it.

Eighty of Michigan’s 82 counties voted “Yes.” Only two counties, Washtenaw and Ingham, voted “No.”  The University of Michigan is located in Washtenaw County and Michigan State University is in Ingham County. Both U of M and MSU have enrollments exceeding 40,000 students, who are required to vote in their academic residence counties.

On January 23, 2012, a lesbian couple filed a lawsuit in the U.S. District Court for the Eastern District of Michigan, challenging the state's ban on same-sex marriages. The women are April DeBoer and Jayne Rowse, both nurses. One has an adopted son and the other has two adopted daughters. Michigan law restricts second-parent adoption to married couples.

The Federal District Court Judge ruled that Proposition 04-2 violated the United States Constitution and directed the defendant county clerk to issue a marriage license to the plaintiffs.

On appeal to the Sixth Circuit Court of Appeals in Cincinnati, the decision of the trial court was reversed. The plainiffs appealed to the United States Supreme Court. On November 17, 2014, the Supreme Court agreed to hear the case and consolidated it with three similar cases from other States, giving all the lawyers until April 17, 2015 to file their briefs.

In the days and weeks ahead, there will be much speculation in the newspapers, on television and all over the Internet on whether or not the Supreme Court of the United States will “legalize gay marriage.”

Attorney General Schuette who represents the State of Michigan has capsulized the case exactly as it should be understood. He says the case is all about “who gets to decide the question of gay marriage?”

Schuette argues that the people of Michigan have the power and the authority to amend their constitution, and the definition of marriage is one of those things that the Tenth Amendment leaves to the States to decide.

Like all the other States. Michigan has laws which establish the minimum age for marriage and the degrees of kinship which are eligible to marry. Its statutes require that the parties be free to marry; bigamy and polygamy are prohibited. Michigan has abolished common law marriage; a license is required and the contract of marriage must be witnessed by an eligible clergyman or judge.

The record is clear that the people of Michigan want marriage to be a contract between one man and one woman.

Unhappily, the proponents of gay marriage are unconcerned about the nicities of constitutional governance. Ms. DeBoer and Ms. Rowse are not interested in what the people of Michigan think. They want to be married, and they want the United States Supreme Court to tell them they can marry in Michigan. The voters be damned.

Unhappily, over the years, the Supreme Court of the United States has usurped the power to make laws. The Justices seem to think that appointment to that august bench carries with it the authority to decide what is best for the American people.

No doubt the plaintiffs will argue, and some Justices will agree, that the will of the people, expressed in a 58.6% majority in 2004, no longer applies; that the negative vote of the two university towns presages an “emerging consensus” among the next dominant generation to approve a more permissive code of sexual behavior.

To insist that, in a Republic, the people have the right, the power,  the ultimate authority to make the laws will be be viewed, by some, as caviling, nitpicking pettyfoggery.

So be it. I’ll have more to say on this. Stay tuned.


  

Sunday, January 11, 2015

TERRORIST THEOLOGY



Christians, and particularly those of the Roman Catholic tradition, are frequently the object of ridicule. The hatred with which followers of Jesus Christ are regarded by some non believers fuels taunting, insults, confrontation and sometimes even sacrilege.

The Catholic League for Religious and Civil Rights publishes annual reports describing the many, many malicious attacks made upon Christianity in the United States. Books, plays, television shows, art exhibits and public demonstrations mocking Christian churches, beliefs and tradition are commonplace.

Unhappily, these insults are frequently applauded by icons in entertainment and the mainstream media.

Here’s an example from 2013:

New York, NY – At the New York Film Critics Circle Award, Michael Moore presented the Best First Film to David France for his documentary celebrating gay activism, “How to Survive a Plague.” In particular, the documentary honored the day when homosexual terrorists from ACT-UP invaded St. Patrick’s Cathedral in New York City on December 10, 1989. They interrupted the Mass by shouting and waving their fists; they tossed condoms in the air; they spat the Eucharist on the floor; they chained themselves to pews; they stopped Catholics from going to Holy Communion. In an editorial at the time, the New York Times called what happened, “an act of desecration.” Moore said, “I personally like that one.”

The days of the Spanish Inquisition are long gone in Christianity, and the activist militarism of John Brown is no longer celebrated in Western civilization.

By and large, we have learned to respond by communicating verbal protests and then praying for our detractors.

I have no doubt that Pope Francis and the College of Cardinals would sternly condemn the Knights of Columbus if they were to form a posse comitatus  and hang Michael Moore from a tree.

That said, I can’t help but wonder how many of the faithful who were at Mass in Saint Pat’s on December 10, 1989 would hasten to join the mourning if some fundamentalist whacko were to dispatch producer David France.

In the wake of the Charlie Hebdo massacre, we are urged to recognize and be mindful of the distinction between faithful, law abiding Muslims and radical Muslim terrorists.

There’s a difference between theology and feelings. It is difficult to get terribly worked up when the bad guys have bad luck.

My old colleague on the Michigan Supreme Court, John Dethmers, used to say, “the first issue for the jury in a murder trial is, ‘ Should the deceased have went?’”

Muslims who would have seen the hand of a vengeful Allah if the editorial board at Charlie Hebdo had been obliterated in a tornado, may have some difficulty mourning the demise of their tormenters, even if they concede that murder by Jihad is sinful.

The millions of marchers in Paris want to declare war on terrorism. Good luck to them. George Bush did that in 2002. It doesn’t work. Fighting terrorism is like fighting sin. You just can’t kill all the sinners.

President Obama wants to ‘degrade and destroy’ ISIL. ISIL is not a country, it’s a movement. Destroying ISIL is like destroying Communism, or Christianity, Socialism or Capitalism. As long as there are believers, a movement abides.   

I have said it before and I’ll say it again. In a civilized society, murderers should be brought to justice. You can no more prevent murder as a expression of religious fervor than you can prevent murder for greed. Or lust.

In a free country there can be no thought control. The idea of preventative incarceration is a preposterous surrender to dictatorship. Even the Gestapo couldn’t make it work.


Friday, December 19, 2014

THE FIVERS



It is perhaps a happy sign that enough people have become active in the movement to organize an Article V amendatory constitutional convention to generate disputes among them.

Perhaps a better word is quarrels. What I am seeing is the kind of personal, accusatory bickering that characterizes much of ‘politics as usual.’

It’s too bad. All of the reformers – they call themselves ‘fivers’ – ought to be working together. The task is hard enough if pursued with unity. It is impossible if we are divided.

Certainly there is a root problem imbedded in the very nature of a convention. The problem is as old and as real as the nation itself: it is not red states against blue states or Republican versus Democrat. Not really, although it feels that way.

The difficulty is that the United States consists of fifty sovereign entities of vastly different size. The ten largest states host over half of the nation’s 308 million people. At the same time, the constitution is amended by a ratification of three quarters of the states. It follows that it is technically possible to amend he constitution with a combination of states having less than half of the people.

I say ‘technically’ because as a practical matter in these days of mega networking, social media, and the ubiquitous face of television, it is quite impossible to convince the people of the small states of reforms that the people in large states oppose.

In short, it should be obvious to anyone that no amendment will be ratified which does not represent the consensus of the American people, and the convention must reflect that fact in its rules.

Ah yes, the rules of the convention. Who makes them? There seem to be three points of view on this subject. Some say Congress will make the rules. After all, the Constitution says that Congress calls the convention, so why doesn’t the ‘caller’ spell out the rules?

The answer is obvious. The Article V convention was put in the Constitution to provide a way for the states to rein in an overbearing federal government. To permit the Congress to make convention rules would be to put the fox in charge of the hen house.

It would take no stretch of the imagination to suppose that the Congress would direct that the convention consist of 545 delegates; one chosen by each member of Congress, one by each Justice of the Supreme Court and one by the President.  Hardly a recipe for reform.

A second group insists that the State legislatures should make the rules. These are folks who see an Article V convention as a convention of the States, represented by their respective legislatures. They see the convention being organized in pretty much the same fashion as Congress and the State Legislatures themselves are organized.

And how is that done? Quite simply, along party lines. Majority and minority. One side of the aisle or the other. Winner take all, State by State.

The trouble with that approach is that it can end up like Bush v Gore, with the winner getting less than a majority of the popular vote. We managed to avert a crisis in 2000 when the Supreme Court ignored the constitution and decided the election, but that impromptu approach wouldn’t work for a constitutional amendment.

No sir, the only sensible approach is the third way; let the convention make it’s own rules, but first make sure that every community in America is represented.  There are millions of Republicans in New York and scads of Democrats in Texas. A convention must hear from all the people. It must allow all the ideas to be explored, all the arguments to be made.

The convention must not be bi-partisan. It must be non-partisan. There is a huge difference. Delegates must be chosen for who they are, not for the team they play on. Brand name politics are a major cause of our dysfunctional government.

Let’s be done with name calling and impugning motives to every argument. If we listen to each other and glean the kernel of truth in every thing that is said, we might just make some real progress.

Sunday, December 14, 2014

A CALL TO ACTION


Article V of the United States Constitution says that if two thirds of the State Legislatures apply, the Congress shall call a convention to propose amendments to the constitution.

In the 230 years of our history there have been more than 700 applications from the State Legislatures. Forty-nine of the fifty states have applied. Some States have applied many times.

Congress has never called a convention. Congress has never considered calling a convention. Congress has never even counted the applications.

Why haven’t they? Why has Congress ignored their obligation under Article V?

Very simply because they don’t want a convention.

The Article V convention was written into our constitution for the very purpose of giving the States a means to amend the constitution in ways that the Congress doesn’t want.

Term limits. Gerrymandering. Pork barrel laws. Balanced Budgets. Congress doesn’t want to reform itself. And Congress doesn’t want a convention that will propose reforms.

Let’s face it. The United States Congress will never call an Article V convention. No matter how many states apply. No matter how many times they apply. No matter what words they use or what amendments they want.

Congress simply will not call a convention. Not in my lifetime. Not in your lifetime. Not in the lives of our children and grandchildren. 
 
So what are we to do?

The Constitution gives us the right to a convention. With or without the call or the permission of the Congress, the people of the United States have the right peaceably to assemble for any lawful purpose.

We don’t need a call from the Congress. We don’t need anyone’s permission. The Congress can’t stop us. The President can’t stop us. The Supreme Court can’t stop us. The army can’t stop us. The FBI, the CIA, Homeland Security, nobody can stop the people from coming together to propose amendments to the United States Constitution.

All we need is the will and the way. The way is right here on the Internet. www.conventionusa.org. Convention USA – conVusa for short – is up and running. It is to be an interactive Article V Amendatory Constitutional Convention of 6,166 delegates representing every county in the nation.

All that is left is the will.

Government is like the weather: everyone talks about it, but nobody does anything about it.

Whatever your politics, if you believe we need constitutional reform in America, I urge you to join me and hundreds of other patriotic citizens in this historic effort. Go to www.conventionusa.org. Find your district and register as a delegate. Then forward this page to all your friends.

You can make a difference. 


Tuesday, November 25, 2014

FERGUSON RIOTS



Last night, they burned the town. Thousands of people milled around in downtown Ferguson, Missouri. Many were good folks who had come to protest the decision of a grand jury not to indict Darren Wilson, the white police officer who shot Michael Brown, an unarmed black teen ager.

But some of them – indeed, many of them -- were there to make trouble. And they did. Millions of dollars of property damage. Stores looted. Automobiles and buildings torched. Shots fired. People injured.

Most of the rioters were black and  young. They had been given a pass. Responsible people, adults, even white folks, were incensed about the shooting of Michael Brown. The TV, the newspapers, the Internet were all hyped up to react to the grand jury’s decision.

And so they came. Bearing, sticks and stones. And gasoline, and guns.

Most of the Ferguson rioters had not yet been born when Detroit was burned. On a summer night in 1967, police raided a blind pig on 12th Street. The patrons refused to be taken downtown and the ensuing scuffle exploded into an uncontrolled rampage.

Four days later, 43 people were dead, 1,189 were injured, 7,200 were arrested and more that 2,000 buildings were destroyed.

In 1967, we lived in Detroit, on Berkeley Road near Seven Mile and Livernois. The stores just a few hundred feet from our back door were looted. We could smell the smoke and hear the gunshots.

Anarchy isn’t pretty. It’s scary. It’s insane.

Bron Cruz is not a white man. His name and his photo suggest that he is Hispanic. He is a Salt Lake City police officer who shot and killed an unarmed white teen ager two days after Michael Brown died in Ferguson, Missouri.

The family and friends of Dillon Taylor, the Utah teen ager, have organized several protests in an effort to get answers about Dillon’s death. South Salt Lake police have refused to comment. No grand jury has been convened. Only the local media gave the matter any real attention, and that has pretty much died down. Hardly anyone cares in Utah. Nobody cares in America.

On April 23, 2012, a 29 year old, unarmed Hispanic pedestrian named Daniel Adkins was shot and killed by a black man who was sitting in his car in front of an Arizona Taco Bell. No charges were ever filed against the shooter. In fact the name of the gunman has never been released by the police.

As far as I can find on the Internet, the friends and supporters of Daniel Adkins and Dillon Taylor have not looted any stores, burned down any buildings, overturned any vehicles or pranced in front of network television cameras.

The administration of criminal justice is not perfect. But civilization requires that we do the best we can, and that the people who are dissatisfied with the system work responsibly to improve it. 

Often protesters are not concerned about the system. They don’t object to the way we do things; they complain about what we do. No one claims that the Ferguson grand jury was tainted or improperly constituted, or that the constitutional requirement of grand jury indictment is not a valid and valuable civil right.

No one says that the grand jury didn’t hear all the evidence. No one is saying that they didn’t listen, or were in any way corrupted or compromised.

No sir, what we hear coming out of Missouri is the voice of the mob. Black or white, a mob is never rational, never reasonable. No doubt there are some protesters in Ferguson who want Darren Wilson indicted and put on trial, but the majority would not be satisfied unless Wilson is actually convicted.

One can only imagine what would have happened to Darren Wilson if he had been seen walking out of a police station or a courthouse last night.

A mob has no conscience. Black Americans should be keenly aware of the horrors of vigilante justice.

Thursday, November 20, 2014

FIXING CONGRESS


Now that the Republicans have won the Congress, perhaps the mainstream media will allow itself to focus on needed constitutional reforms.

There are three main proposals that are usually advanced to reform our national legislature.

1)   Do something about campaign financing. This usually takes the form of: a) prohibiting all private campaign funding and requiring the government to finance campaigns; b) prohibiting certain kinds or amounts of campaign expenditures; or c) specifying who can or cannot finance campaigns.
2)   Enact term limits by constitutional amendment.
3) Increase the size of the House, shrink the districts, prohibit gerrymandering and decrease the expenses and emoluments of Congress persons.

Personally, I favor the third  approach. Public financing of political campaigns is a frightfully bad idea. Public funding is controlled by the government and the government is controlled by the incumbents. It follows that public funding of elections, controlled by incumbents will absolutely favor incumbents. Giving that kind of an advantage to career politicians is hardly the way to discourage career politicians.

I am, at best; ambivalent with respect to term limits. We have them for some offices and the evaluations are mixed. The main argument against term limits is that they deny the people the right to elect the representatives they want. My concern, frankly, is that term limits don’t address the real problems. You will still have career politicians, albeit ladder climbers rather than lifelong incumbents. You will still have interminable fund raising, expensive campaigns, cozy lobbyists, and all the shenanigans that besmirch our system today.

Moreover, term limits tend to exacerbate the career path of legislator-to-lobbyist that already makes our Congress seem like a post graduate course in representing supplicants at the public teat. 

The third approach appeals to me as the soundest. The Founders intended the House of representatives to be reapportioned every ten years to reflect the increase in the nation’s population. Because the ratio of representatives to constituents was not specifically written into the constitution, Congress was able to freeze the number of representatives, thus increasing the power of their offices every ten years.

Today, Congressmen represent an average of 710,000 people. Campaigns are expensive. That is why so many incumbents are reelected. Gerrymandered districts assure that one or the other of the two major political parties has a “safe” district.

Most importantly, Representatives do not reflect the sense of local communities. Districts which are not community-based foster appeals to the lowest common denominator of voter sentiment, typically evidenced by partisan affiliation, ethnicity or economic bias.

Large districts lead to full time legislators, large professional staffs, and centralized operations. The part time legislator who lives in his or her district and personally reads and studies Bills does not exist in  expansive and expensive constituencies.

At a minimum, we ought to eliminate gerrymandering and require Congresspersons to live in their districts. As now written, the Constitution only requires members of the House to be residents of their State. In truth, most do not actually live in their ‘home’ state, since their principal place of residence is Washington D.C. A vacation home or a campaign headquarters should not satisfy the requirement of residence.

There is much more to be said and written on this subject, to be sure. That’s why we need a convention.