POLITICS IN COURT

Longer than my usual blogs, the following is a speech I gave in Detroit last week.

It has been twenty five years since then Chief Justice Dorothy Comstock Riley, God rest her beautiful soul, conceived of the idea for a society which would be dedicated to preserving and celebrating the history of the Supreme Court of Michigan.

I had then been an alumnus of the Court for more than fifteen years, and was pleased to join with Dorothy and her beloved Wally to launch this worthwhile endeavor.

And so I am especially honored to have been invited to this microphone, and asked to share some thoughts appropriate to this annual luncheon of the society.

This being an historical society, I have a few things to say about the good old days.

And maybe some thoughts about the where the Michigan Supreme Court ought to be going in the future.

Back in the eighteen nineties, my maternal grandfather, John Emmett Sullivan, ran unsuccessfully for Probate Judge in Wayne County.

Sullivan is best remembered as the Plaintiff in Sullivan v The Railroad, the oft quoted case which stands for the proposition that a lawyer who doesn’t get his money up front probably won’t get paid at all.

Judicial elections were partisan in those days. My grandfather was a Democrat.

So were all the Brennans. Except my father. He worked at the Secretary of State’s office all through the depression.

It was essentially a patronage job, and Joe Brennan was a faithful Republican precinct delegate.

I well remember wrestling on the front lawn of our house on Morley Avenue, defending our support of Landon and Knox against Roosevelt and Garner in 1936.

After law school, I was an unsuccessful Republican candidate for the state legislature, and later for the U.S. Congress against John Dingell in 1955.

When I graduated from the University of Detroit Law School in 1952, there were four lawyers named Brennan in Michigan.

Three of them were Circuit Judges.

Folks said I had a good name and should run for judge, and so I did.

I concede that the name Brennan gave me a head start, but it was hardly a simple matter of putting my name on the ballot.

I lost twice before being elected to the Common Pleas Court of Detroit by a narrow margin of 562 votes in 1961.

Campaigning for judge in Detroit in the late 1950’s and the early sixties taught me that most folks vote for judges on the basis of personal knowledge and recommendations.

Name recognition is important, of course, but mostly because it carries ethnic or religious identification.

I was welcomed at candidate meetings of both political parties.

I well remember the day I campaigned on twelfth street behind the popular democratic Governor, G. Mennen – Soapy – Williams.

I was tagging along with the Governor and a coterie of his judicial appointees.

We came to a drug store which had one of those old fashioned soda counters.

Soapy waded in and shook hands all along the counter, and I followed.

One very large, very black lady took my campaign card and studied it carefully.

Finally she asked me, “Aren’t you the Republican?”

I gulped and said, “Yes Ma’am.”

She looked up from the card with a big smile and said, “Well, you all right!”

I campaigned in black churches, once even preaching on Palm Sunday.

I campaigned at the Dompolski Hall, where I learned how to say, “dobry wieczór, panie i panowie.”

And of course, I campaigned among the Ancient Order of Hibernians, the Friendly Sons of Saint Patrick and the Thirty-Two Counties of Ireland Club, which sponsored a dance every week to raise money for Sister Mary Claire.

I never met Sister Mary Claire.

I always suspected it was a code name for the IRA.

When Governor Romney asked me to run for the Supreme Court in 1966, I was a little worried about accepting the Republican nomination.

I was part of the County Building crowd, the Irish Murphia as it was known.

Running against Thomas Matthew Kavanagh, the quintessential Irish Catholic, Knights of Columbus Democrat, and Otis Smith, the first person of African heritage to be elevated to the Supreme Court, was not exactly a way to build up a political base in Wayne County.

Still, it was a great honor for a 37 year old lawyer.

Governor Romney had appointed me to the Circuit Court. My kids called him “uncle George from the job.” There was no way I could turn him down.

But I did do something that, to my knowledge, no other person nominated for a public office by a partisan political convention has ever done.

In my acceptance speech, I paraphrased a famous line by New York Mayor Fiorello LaGuardia.

LaGuardia was his own man. He made that clear when he said, “My only qualification for public office is my monumental ingratitude.”

I liked that line.

I told the delegates to the Republican convention of 1966 that my only qualification for their partisan nomination was my monumental non-partisanship.

They put me on the ballot anyway.

So I went off on a lonely sixty thousand dollar campaign that no one, least of all my family and I, thought would be successful.

As it turned out, I ran second to Chief Justice Kavanagh, and defeated Otis Smith, probably the nicest, gentlest human being ever to grace the Michigan Supreme Court.

Otis and I became good friends.

He did me a great favor by asking me to retain his secretary, Mary Lou Shepherd.

And he always credited me for getting him a job at General Motors.

His salary as General Counsel was probably more than the whole Supreme Court.

It was during that campaign in the summer of 1966, that I began to learn something of the partisan in fighting that soils the linen of the Supreme Court.

In my campaign speeches, I criticized the Chief Justice for permitting the published opinions of the Court to be sullied by personal bickering among the Justices. Particularly between Justice Theodore Souris and Justice Eugene Black.

I felt that such wrangling was unseemly and that the Chief Justice should have been able to tone it down.

My criticism of the Chief piqued the interest of Justice Black and he began to call me regularly to egg me on.

Eugene Black was an interesting character. A self-educated lawyer, he spent one day at the Detroit College of Law, concluded that it was a waste of time, and went home to Port Huron to intern in a law office until he could sit for the Bar Exam.

He had been elected Attorney General of Michigan in 1946 as a nominee of the Republican Party. And in 1956 he was nominated for the Supreme Court by the Democratic Party.

When I won the election, Gene Black gleefully insisted that I should be a candidate for Chief Justice.

On January 1st, 1967, there were still eight members of the Court. The provision of the 1963 Constitution, reducing the Court to seven members would not take effect until Ted Souris retired the following year.

The Court was split down the middle.

Chief Justice Kavanagh, and Justices Paul Adams, Ted Souris, and Gene Black were nominees of the Democratic Party.

Mike O’Hara, John Dethmers, Harry Kelley and myself were Republicans.

Black insisted that if I could line up the Republicans to support me, he would cast the deciding vote in my favor.

I kept telling him I was too young, and insisting that Mike O’Hara should take the job.

The night before the first meeting of the Court which I attended, I closed the bar at the Jack Tar Hotel trying to persuade Mike O’Hara to accept the Chief Justiceship.

The best I could get from him was a promise to think about it.

At four in the morning he called to say that he couldn’t do it.

About eight hours later, to his shock and amazement, John Dethmers was returned to the office of Chief Justice.

In 1968, Mike O’Hara was defeated by Thomas Giles Kavanagh.

So now there were two Tom Kavanaghs on the Court.

We had to use their middle names. Matthew and Giles. TG and TM. Thomas the Good and Thomas the Mighty.

So in January of 1969, the Court was reduced to seven members.

There was a 4 to 3 Democratic majority, but one of the Democrats was the maverick Gene Black who wanted me to be Chief Justice.

So I was elected, at age thirty nine, the youngest person to hold that office.

Two years later John Dethmers and former Republican Governor Harry Kelley were replaced by two former Democratic Governors, G. Mennen Williams and John Swainson.

And that was the end of what I like to call Michigan’s judicial Camelot.

Certainly there was partisanship on the Court as I’m sure there had been for more than a hundred years before I came there.

It mostly had to do with who was chosen Chief Justice.

And of course, in classically partisan issues like reapportionment.

But the revolution of judicial activism that began with the appointment of Earl Warren as Chief Justice of the United States in 1953 had only begun to trickle down to the state courts when I was on the bench.

The unapologetic assertion by judges and academics that it is the proper function of courts to look for emerging public consensus and then declare new rights and new obligations, has spawned a novel and disturbing kind of partisanship in our courts.

Deciding cases and controversies between litigants has given way to weighing in on hot button political and social issues.

That infection has metastasized from Washington D.C. to Sacramento, Albany, Harrisburg, Columbus, Lansing and elsewhere.

As a result, a judicial campaign that cost less than twice a year’s salary in my day is now tallied in the millions, even tens of millions of dollars.

Money begets power and power begets money.

That’s why partisan politics is all about money.

But referees and umpires do not wear the uniforms of the contesting teams, and judges ought not to be labeled as adherents to any political party.

They shouldn’t think of themselves in partisan terms, and they shouldn’t act that way.

Recently a distinguished committee headed by former Justices Jim Ryan and Marilyn Kelly wrestled with the long percolating problem of judicial selection at the Michigan Supreme Court.

After much study, discussion and debate the committee recommended the adoption of a non-partisan Primary Election for the Supreme Court just as we have for the Court of Appeals and all of the trial courts.

It’s a simple change.

Doesn’t require a constitutional amendment.

It can be done with ordinary legislation.

I urged it more than forty years ago as Chief Justice.

The State Bar endorsed the idea long ago and still supports it.

If I had not resigned in 1973, I would have had to run for reelection in 1974. I had already given a great deal of thought about what I would do in that election year. My plan was rather simple.

My strategy was to go to both the Republican and Democratic conventions and ask for their endorsement and support, but to refuse to be nominated by either party.

The constitution permits an incumbent Justice to get on the ballot by filing a simple affidavit of intent to be a candidate.

That is what I would have done.

It was not an entirely idealistic thing to do.

As I saw it, only one of three things could happen.

If neither party nominated a candidate, I would have been reelected without opposition.

If both parties nominated candidates, it would have been a three way race in which I would be designated on the ballot as the incumbent, a very favorable situation.

And if only one party nominated a candidate, I would effectively become the candidate of the other party, with the additional benefit of having made a friendly overture to the party of my opponent.

Moreover, I would have had, in either event, a solid issue on which to campaign: keeping the Court out of politics.

I believe that with the publication of the Ryan-Kelly Committee Report on Judicial Selection, it is time for the Supreme Court of Michigan to step up and do something.

It is time for the Supreme Court to dig itself out of the ditch of partisan politics.

I urge the Justices to adopt a sense of the Court resolution, asking the political parties to refrain from nominating candidates to oppose incumbent Supreme Court Justices, and expressing the unanimous commitment of the seven members of the Court to rely only on the constitutional affidavit of candidacy in future elections.

I believe that such a resolution would be met with widespread, if not universal public support.

It would be trumpeted as a decision to take the Court out of partisan politics, to make the Court truly non-partisan.

It would bolster the public image and prestige of the Michigan Supreme Court in a way that no other single action can do.

It would announce to our profession and to the public, that in the Michigan Supreme Court, the Party is over, and a new era of non-partisan jurisprudence has dawned.

That action would trigger serious discussion and action in the legislature to create a non-partisan Supreme Court Primary election.

Experience shows that competent judges are hardly ever opposed in non-partisan primaries.

If a judge enjoys favorable repute among the lawyers, they leave him or her alone at election time.

Not true in the Supreme Court with party nominations.

The roster of able, dedicated and accomplished Supreme Court Justices who have been defeated at the polls is long and unhappy.

That roster includes the great Justice Thomas McIntyre Cooley who was defeated largely through the efforts of the Detroit News against which he had ruled in a libel case. In my time, it includes Clark Adams, Otis Smith, Paul Adams, Mike O’Hara, John Dethmers, and Thomas Giles Kavanagh. More recently, Larry Lindemer, Alton Davis and Chief Justice Cliff Taylor were voted out.

By contrast with all of that political blood letting, no incumbent Judge of the Michigan Court of Appeals, to my knowledge, has ever been defeated at the polls.

The sense of the court resolution which I recommend, would not only burnish the reputation of the Court. It would effectively safeguard the tenure of incumbent justices.

It would relieve them of the distasteful groveling associated with nitty gritty political campaigning.

Most important, it would get them out of fundraising.

It would get them out of the unholy business of asking for money.

And remembering who gave and how much they gave.

That resolution would not make Michigan’s high court the most non- partisan in the land.

We would still have unfettered gubernatorial appointment to fill vacancies.

The 1963 Constitution, before it was amended, abolished gubernatorial appointments and required that vacancies be filled by non-partisan election. Retired judges would fill in until a successor was elected.

Unfortunately, there weren’t enough retired judges and gubernatorial appointment was reinstated.

There isn’t any perfect system.

Everybody is somebody.

We all have our own predilections, prejudices and preferences.

But a wise public policy should try to lower the odds. That’s what Jim Ryan and Marilyn Kelly and their distinguished committee tried to do.

They came to the conclusion that, in a republic, courts need to have the acceptance and approval of the people.

Judges have no armies and courts have no taxing power.

The heartbeat of the judicial system is the confidence of the people.

The people of Michigan want to elect their judges on non -partisan ballots.

It’s the right thing to do.

And it’s time for the sitting justices to take the lead.

The honorable Charles Levin is the only person still living with whom I served on the Michigan Supreme Court.

He has the distinction of being the most non-partisan member of the Court.

He formed his own party, held a convention in his basement and got himself nominated.

We didn’t agree on many things when we sat together, but I will venture a guess that he supports the recommendation of the Ryan-Kelly committee.

Perhaps he would even concur – separately, of course – in my advice to the sitting justices.

In any case I will relish debating it with him.

For that opportunity and for everything else it has done in twenty-five years, I thank the Society and especially its distinguished President, and my dear friend, Wally Riley.

A NOTE FROM RICHARD

Celebrating our 62nd wedding anniversary, Polly and I went to Mass at Sacred Heart in downtown Tampa.

It’s a lovely old church, with all the stain glass and statuary we old timers associate with our Catholic faith.

Getting settled in our pew, Polly discovered a note in the hymnal pocket. Obviously hand written by a young child, the message was clear and curious.

Here’s what it said: Kate: Dear Sis, I love you and forgive you. Love, Richard.

Made for an interesting chat at brunch later.

Forty boys and girls had made their first communion the day before. We guessed that the note was left by one of those children, newly admitted to the community of Christians, who was clearing the decks of conscience in preparation for receiving the sacraments.

Polly handed the note to me and whispered, “This calls for a blog.”

So here it is.

“I forgive you.”

I wondered who I would say those words to.

Frankly, I could think of no one.

Funny. I’ve been around this old place for eighty-three, going on eighty-four years. I know I have taken more than a few hits that left hurts, bruises, even scars.

But I’m dogged if I can call any to mind.

The old joke is that Irish Alzheimer’s consists of forgetting everything but the grudge. If so, I’m either not very Irish or not yet afflicted.

I seem to recall my father telling me, when I complained about bullies in the neighborhood, that I should simply forget their names. It really works. Hard to remember being mad at somebody when you can’t recall his name.

As a judge, it was often my duty to pronounce sentence on people convicted of crime. More often than not, they would have pled guilty, if not by way of throwing themselves on the mercy of the court, then more likely as a condition of a plea bargain to get out from under a more serious charge.

Our criminal justice system is founded on humane principles. It’s not a matter of revenge or retribution. We send people to a ‘penitentiary’ operated by the department of ‘corrections.’

A penitentiary is a place to do penance. It’s where people do time to make up from doing wrong.

In the Catholic tradition, penance is the price of forgiveness, given in response to contrition.

In theory, a criminal who pays his debt to society, if not forgiven, is at least reinstated as a member of society.

One wonders how the families of people killed in terrorist attacks are supposed to feel. How do you forgive the unforgivable?

When the law has run its course, when the culprits have been caught and convicted, when the full and proper process of criminal justice has run its course, how should we feel?

Should our guts be twisted with resentment and anger?

Should we harbor hatred, and the insatiable urge to visit murder and mayhem on anyone and everyone connected with those who do us harm?

Hammurabi’s code is famously remembered for the dicta “an eye for an eye and a tooth for a tooth.”

It is quoted in these times as justifying vengeance. In truth, the admonition was that revenge should be limited by the scope of the injury.

In short, Hamurabi was advising against escalation of feuds. Or as the old Irish ballad bemoans, “an eye for an eye and another for another until everyone is blind.”

The truth is that there is evil in the world. Sin is as much a part of nature as tsunamis. People do bad things.

But that’s because people are designed to be free.

If someone invented a pill that would prevent human beings from wrongdoing, would you take it? Would anyone?

Isn’t the right to do wrong the very definition of liberty?

Totalitarian governments may promise safety and security, but at what price?

In the last analysis, forgiving is not what we do for someone else. It’s what we do for ourselves.

It’s the balm that soothes aching hearts.

A LETTER TO GRACIE

My grandaughter in Chicago, who attends DePaul University, wrote asking me to respond to a questionaire about work.

Interesting exercise. Here's what I sent her:

My first job was selling The Detroit Times in front of the Ditzler Color Company to the men as they came out of work in the afternoon. The papers sold for 3 cents apiece and I netted about 50 cents a week. I was maybe 12 years old. While in grade school I worked at a grocery store (one week, I didn’t like that) and as a car hop at a drive in root beer stand.

In high school, I worked at various jobs during the summer. One year I worked for the City of Detroit, counting cars at various intersections. The summer after I graduated from high school, I worked at the railroad station loading bags of mail onto box cars. My regular shift was from 3 to 11, but sometimes I got to pull an extra shift until 6 AM.

In college, during the school year, I worked at the Michigan Alarm Company. I was a night dispatcher on weekends. I went in on Friday night and stayed until Sunday. There was a cot to sleep on. My job was to alert the police if an alarm went off, and to send our service men out to repair or reset the alarms. On Monday I went to the office and picked up my check. Thirteen dollars and twenty cents. Ten went to the bursar at the University of Detroit. The other three twenty was for car fare. If I wanted spending money or date money, I set pins at a bowling alley on weekday evenings.

During the summers when I was in college, I worked at a stone yard. Lots of heavy lifting. I had been turned down at Ford Motor Company because I had a hernia, but the stone yard was a small shop and they didn’t require a physical. While there I learned how to cut stone and drive heavy trucks, including one all night trip on a semi to Indiana to pick up twenty tons of lime stone. Big kick for a college boy.

When I started law school I got a job at the Detroit Bar Association Library, re-stacking books and doing a little research. When summer came, I went back to the stone yard. In 1950 I got a job delivering photographs to drug stores for a company that developed pictures. That was from 5 to 9 PM after the stone yard. The extra job was how I made enough money to buy an engagement ring for my sweetie.

By the time I was a senior in law school, I was working at Burton Abstract and Title Company. I had several jobs there. The boss was kind to law students. If I finished my work, I could do my school work on company time. I put in eight hours a day there, usually finishing around 7PM.

I was still working at Burtons when I graduated. About two years later, I was hired by a law firm that did a lot of collection work. It was a volume operation, and afforded me a lot of experience in a short time.

In 1955, I left the firm and went into practice with Bob Waldron, a young lawyer who had been elected to the state legislature. We shared a small office downtown. No secretary. We hired secretaries from other firms to work after hours.

Starting when I was still in law school, I began running for public office. At age 23, a senior at the U. of D. I garnered about 60,000 votes to be nominated by the Republicans for the state legislature. Of course, I didn’t win, as Detroit is a Democratic stronghold. I lost again in 1954, and in 1955 was defeated for the United States Congress by a young fellow named John Dingell. He is still in the House of Representatives, the longest tenure in history.

In 1957 and 1959 I ran unsuccessfully for Common Pleas Court Judge. It wasn’t very good for my law practice. I think that in my best year, I made about $11,000.

In 1961, I was elected to the Common Pleas Court, where my salary was $18,000 a year. A big raise, but I was about $25,000 in debt from campaigning and feeding five kids.

Two years later, Governor George Romney appointed me to the Wayne County Circuit Court. That was a very interesting job. Two years after that, the Governor asked me to run for the Supreme Court. Nobody thought I would win, but I did.

Two more years passed and the Justices appointed me Chief Justice. Very heady stuff. I was 39 years old, the youngest ever to hold that job.

One of the reasons I was made Chief was that the Court had not received a raise in many years. The salary was $35,000 per year. As Chief, I managed to persuade the State Officers Compensation Commission to give us a boost to $42,000. A twenty percent increase.

Still, I was struggling financially with six children, the oldest starting college, and the others right behind. I managed to make a few extra dollars teaching at the University of Detroit, although it was burdensome to drive 180 miles round trip.

In 1972, I began working on a new project: starting a law school in Lansing. By the end of 1973 the school was up and running with about 150 students. I decided it needed my full time attention, so I resigned from the Court and became the first Dean of Thomas Cooley Law School.

I continued to work at the school for the next 29 years. I remain on the staff, mostly just consulting and doing ceremonial things.

That’s my career path.

Probably my most favorite job was being Chief Justice of the Supreme Court. That’s partly because I was young and energetic then. It was obviously a great honor and the work was fascinating. My family was proud of me, and that meant a lot.

The job I liked least was working at the grocery store. A classmate in the eighth grade worked there before I hired on. He got to wait on customers while I swept the floor. I got paid on Friday and didn’t come back on Monday.

How many hours a day? I never counted. During many times of my life, I worked from the time I awoke until I went to bed, sans about two hours for eating, dressing, and attending to personal needs.

Work is satisfying. It defines us, rewards us, strengthens us, and gives us a sense of purpose and accomplishment. It always has. Many surnames come from occupations: a Fletcher made arrows, a Cooper made barrels, a Smith shod horses. In many ways, you are what you do.

What I most dislike about work is failure. And doing things that I perceive as a waste of time, but which are necessary to do because someone else has ordained that they must be done.

I work because I want to.

The competitive edge comes from trying to achieve self-established goals. Just trying to beat the other guy is a sure recipe for failure.

Work is any productive activity. Right now it is 1:11 AM. Except for lunch and dinner, I have been working at my computer since I got dressed after my morning swim. That would be about 14 hours. I won’t quit until I finish this letter. Then I will go to bed with a smile.

My parents expected me to work. I never questioned why.

To me, a man is born to work. Hunter gatherer. Not to say that women don’t work, too. Indeed, a mother works all day and night. No overtime pay. Trying to compensate my wife for all she does for me and for our children has always been a source of motivation for me.

Old Judge Lacey who lived next door said it best,”Do today your nearest duty.”

My Dad was the person I most admired. He was not complicated. He spoke simply and directly. “You know what’s wrong and you know what’s right. Do what’s right.”

What most excites me is the opportunity to be creative. To build. To invent. To design. Nothing quite satisfies me like hearing someone say,”That’s a good idea.”

Nobody in my family ever went into business for himself, until I opened my law office. The Irish were all cops or politicians. When I graduated from Law school there were four lawyers named Brennan in Michigan. Three of them were Circuit Judges. People said I ought to run, and I did.

My biggest dream for my children has already taken place: Among my grandchildren, two graduates of Michigan State, two from Notre Dame, two from Boston College, one from Holy Cross, one from Colgate, one from Marquette, one soon from Wake Forest and one from the University of Michigan, soon to be followed by another from U. of M., one from DePaul, one from Georgia and Georgia Law School. And I didn’t pay a nickel of it! My kids did well!

If I had all the money in the world that I would ever need or want, would I continue to work? Absolutely. Wealth brings great power, but more importantly it brings great opportunity and responsibility. I would not be a passive investor. I would use my money to start businesses, to create opportunities, to establish institutions where people could WORK doing things they enjoy and appreciate.

Perhaps the greatest satisfaction I have had in my life has come from my role as the founder of Thomas Cooley Law School. I hired a lot of people over the years. When I think of the children raised, the homes purchased, the vacations financed, the retirements assured because I started that school, it makes me very happy.

And I am appreciated. Whenever I go near the school, they treat me like a rock star. Old friends I hired years and years ago, even new employees who came on board after I retired, tell me what a wonderful place Cooley is and how much they appreciate working there.

You can’t buy that kind of love investing in the stock market.

Maybe that is what work is all about. Loving people and participating in the dynamics of the economy by doing your share of what needs to be done so that everybody can pursue their happiness.

PREDICTING THE DECISION

It’s a rare day when the Old Judge goes out on a limb to predict the outcome of a case before the United States Supreme Court.

It’s more rare when the prediction is that they will do what the Old Judge thinks they ought to do. But here it is:

The United States Supreme Court will reverse the lower court’s holding that California’s Proposition 8 is unconstitutional, and the Court will declare the Defense of Marriage Act to be unconstitutional.

In other words, the Court will tell us that marriage is one of those things which the tenth amendment left to the States and the people to handle.

The Constitution of the United States enumerates the powers of the Congress.

Regulating marriage isn’t one of them.

No doubt some conservative voices will be raised in protest. To many people who believe that marriage is a contract between a male and a female, declaring the Defense of Marriage Act to be unconstitutional will seem to be a capitulation to the supporters of gay marriage.

I don’t see it that way.

I think there is a vast difference between the attitudes and priorities of the American people and the culture of ‘political correctness’ which is promoted by the national media. Proposition 8 is a good example.

Where the issue has been left up to the people, the response against gay marriage has been loud and clear.

In my view the first and most fundamental principle of conservatism should be that domestic sovereignty belongs in the states.

The states have what we lawyers refer to as ‘police power.’

Police power isn’t just the criminal justice system, although that clearly is a big part of it. Police power includes the power to regulate the lives and conduct of the people to achieve the common good. It includes the regulation of trades and professions, the ownership and transfer of real estate, the care of the sick and the indigent, the education of the young.

In short, all the activities that taken together we call the economy, are things which belong under the jurisdiction of the states.

Marriage is part of it. A big part of it.

Marriage is essentially a license to start a family. And the family is the basic unit of society, the basic unit of the economy.

Strong, traditional families – mother, father and children – are good for society, good for the state, good for the economy. Where families are strong, there is less crime, less poverty, less unemployment.

The children of broken homes are five times more likely to live in poverty than those who live with their father and mother.

Study after study show that children who live with their mother and father are less likely to commit crimes, more likely to finish high school, and more likely to be employed as adults.

Gay marriage is more than a cultural issue. It affects our households, our neighborhoods, our communities. None of these things can be managed by a distant, national government.

No doubt there are cities in America where homosexual life styles are commonplace and tolerated if not celebrated. The elected representatives of the people may well legalize same sex marriage in a few states.

But there are other places. Cities and states where people want a different life.

Places where the people want traditional relationships and values to be treasured and protected.

Those folks have constitutional rights, too.

TIME FOR A NEW REPUBLICAN PARTY

The hottest session at CPAC last week was the panel discussion entitled “Should we shoot all the consultants?”

Former Democrat pollster Pat Caddell lit up the room with a blistering indictment of the professional campaign consultants who have monopolized GOP strategy for decades.

He called them racketeers, interested only in making money from naïve business moguls, who think that elections can be bought by the highest bidder.

The message then, becomes whatever the campaign professionals tell the candidates they need to say to get elected.

A pretty cynical and inverted way to run for public office.

And an utterly anemic charter for a political party.

There’s lots of hand wringing about the Republican Party these days, not the least of which comes from well meaning citizens who believe a two party system is a good way to run a country.

Doesn’t matter what makes them different. Like a scrub basketball game between the skins and the shirts. Having Red States and Blue States is a good way to smoke out the best leaders.

Competition fosters excellence, they say.

Unhappily, that’s about what Presidential elections have come down to.

It’s National Socialism against National Capitalism.

It’s a choice between government running business or business running government.

Either way, it all happens in Washington, D.C. Either way, the money changers in the temple are the hustlers inside the Beltway.

For more than a hundred years, the Republican Party has been the Party of Abraham Lincoln.

Many historians believe that Lincoln’s successful defense of the Union actually changed the nature of our country from a union of sovereign states to a single national government.

Unfortunately he was assassinated before he could oversee the reconstruction of the South. Lincoln’s magnanimity was replaced by a vengeful Congress’s policies which diminished the sovereignty of the states.

Since then, Movies and mobility, travel and technology, cars and communications have all conspired to blur the boundaries of the fifty states.

Still, human beings may inhabit a planet, a continent or a nation, but they live in communities.

And the Constitution of the United States is premised upon the understanding that our people are citizens of sovereign states as surely as they are citizens of the nation.

It is time for the Republican Party to be inspired as much by Thomas Jefferson as by Abraham Lincoln.

There is no national economy in America. A minimum wage in New York City is different from one in Mississippi.

Kansas and Michigan run on difference economic cycles. The weather is different. The cultures are different. The accents are different.

People trust the government that is closest to home.

There are currently 30 Republican Governors. Not just red states. New Jersey, Michigan, Indiana, Ohio, and Wisconsin all have Republican governors.

It’s time for the GOP to become the party of popular sovereignty. The party that wants to get the national government out of education, health care, marriage, real estate, criminal law, welfare and local business and return the role of governing to the governors and legislatures of the fifty states.

A good place to start would be to endorse the non partisan Supreme Court Amendment.

More on that later.

LET'S JUST DO IT

On August 21, 1789, the Congress of the United States, by a two thirds vote in both Houses, proposed twelve amendments to the federal constitution.

Ten of them were promptly ratified by the states. They are known as the Bill of Rights.

The other two were not ratified immediately. One of them, the original second article, was finally ratified on May 7, 1992, almost 203 years after being proposed by Congress. It prohibits Congress from raising their own salaries during their term of office.

That leaves just one piece of unfinished business. The original constitutional amendment proposed by James Madison and Thomas Jefferson that was to assure that the United States would be a ‘more perfect union.’

Officially known as “Article the First,” the amendment established the ratio of Representatives in Congress to the expanding population of the nation.

There was to be one representative for every thirty thousand people until the House of Representatives reached 100 members. Then there would be one representative for every forty thousand people until there were 200 in the House.

After that, the amendment specified that there should one representative for every fifty thousand people, to be adjusted after every decennial census.

The 2010 census counted 308,745,538 people in the United States. That figures out to 6,175 Representatives in Congress.

Gulp!

That’s a lot more than the 435 professional, career politicians who now live and work inside the beltway around our nation’s Capital.

You betcha.

Throwing out 435 entrenched, lobby financed, political office holders and replacing them with 6,175 folks elected by their friends and neighbors is a big deal.

A very big deal.

But it ought to be done, and it can be done. Just like the 27th Amendment.

All it takes is the ratification of 38 state legislatures.

Eleven States are already on board:

Virginia ratified on November 3, 1789

New Jersey Ratified on November 20, 1789

Maryland ratified on December 19, 1789

North Carolina ratified on December 22, 1789

South Carolina ratified on January 19, 1790

New Hampshire ratified on January 25, 1790

New York ratified on March 27, 1790

Rhode Island ratified June 15, 1790

Pennsylvania ratified on September 21, 1791

Vermont ratified on November 3, 1791

Kentucky ratified on June 24, 1792

So here is the question. It’s more important than a balanced budget, more important than immigration reform, more important than gun legislation, gay rights or health care.

Are there twenty-seven more State Legislatures who will ratify Article the First and return the government of the United States to one that is of the people, by the people and for the people?

PAULIBUSTER

It was just like the old days, when Senators spoke with passion and somebody listened.

Yesterday, the whole nation was in the gallery.

We saw a tired, determined, intelligent and principled gentleman from Kentucky standing up in our computers.

Standing up for America.

Standing up for the Constitution.

The Wall Street Journal gave him a haughty negative review. The Washington Post, no fan of conservatives, acknowledged that Rand Paul is a man of principle, concluding that the Senator staked out a stance on the ‘principle principle,’ their cutesy way of saying that you have to admire someone who stands for something, even if you disagree.

Senator Paul was filibustering against the nomination of John Brennan, no kin of this old Judge. His complaint focused on Brennan’s support for the Holder defined authority of the President to dispatch deadly drones domestically.

The issue? When can the President order a hit on an American Citizen on American soil?

That issue ought to be a slam dunk question on a first year law student’s Criminal Law exam.

The President can order a hit when, and only when a police officer would be justified in shooting someone.

You can’t kill a perp for planning a crime. You can’t even kill him for making preparations.

Of course, once he starts to shoot, he is fair game.

But a preemptive strike is always a dicey business, whether the target is a nation or putative criminal.

The catch phrase of the day is “enemy combatant.” That’s what makes it O.K. to kill a guy who is wearing the uniform of the other country.

Even there, you are supposed to play by the Marquis of Queensbury Rules.

When the enemy is a rag tag army, without uniforms and without a fortress, identifying an enemy combatant will depend on what he is doing or attempting to do.

An American citizen who gives aid and comfort to the enemy is guilty of treason and can be sentenced to death upon conviction, provided the conviction is based upon a confession in open court or the testimony of two witnesses to the same overt act.

That’s what the constitution says. Nothing there about a “high government official” identifying someone who is thought to present an imminent threat.

What determines the difference between a political enemy and a military enemy? Just when does opposition become combat?

Does hanging the President of the United States in effigy earn someone a place on the executive kill list? Does joining an organization that advocates the overthrow of the federal government forfeit a citizen’s constitutional rights?

No doubt in all of this debate some folks will point to Abraham Lincoln and insist that Old Abe authorized the killing of lots of Americans on American soil.

The Confederates adopted a constitution and elected a President and Congress. They believed that they were a separate nation at war with the United States.

Lincoln never saw it that way. To him, they were rebels. Surely he authorized and sanctioned the killing of those who took up arms against the Union.

But would he have commissioned an assassin to murder Jefferson Davis?

Or would he have authorized a drone attack to level Davis’s home and everyone in it?

I doubt it.