Friday, October 2, 2015


Well, the Pope has come and gone. It was a whirlwind visit capped by a Mass for a mass of people; nearly one and a half million.

Now the talk is whether Francis, the charismatic Pontiff, is going to change the Catholic Church. “Modernize” it, as they say.

Some conservative folks had hoped that he would condemn gay marriage. He didn’t. On the other hand, he didn’t endorse it either. What he did was to preside over a carefully scripted celebration of traditional marriage. Sort of reminded me of the old song: “You gotta ak – sen –chu –ate the positive, ee – lim -- anate the negative. Don’t mess with mister in between.”

The secular media has spent much time talking about the Pope’s famous comment, “Who am I to judge?”  They see it as an endorsement of the secular moral commandment: Thou Shalt Not Be Judgmental.

Many of us were tempted to answer the Pope’s rhetorical question with something like this: Who are you? You’re the Pope, for goodness sake. You occupy the Chair of Peter, to whom Jesus said “Upon this rock I shall build my church. Whose sins you shall forgive, they are forgiven, whose sins you shall retain they are retained.” It’s your job to teach folks about right and wrong, to pronounce infallibly, ex cathedra, ‘from the chair’ on matters of faith and morals. What do you mean, “Who am I?”

The truth is that the Chair of Peter is not a comfortable seat for a humble man. Francis teaches us that loving the sinner is more important than hating the sin. Indeed, he challenges us to forget about hating anything – sin included. Especially since we are all sinners. Especially because the divine gift of free will means that all human beings have the capacity to do what they know they should not do.

The Church reserves condemnation to the human conscience. That’s what the Sacrament of Penance is all about. “Bless me Father, for I have sinned.” “I have sinned.” Not, the neighbors say I have sinned or the media says that I have sinned, or the Church, or the Pope says that I have sinned, but I am telling you that I have sinned. I am my only accuser.

It’s called conscience, and it is the moral compass that holds all of human society together. At the University of Detroit, nearly three quarters of a century ago, Jack Roland taught us that Ethics is the science of the “oughtness of things.” He told us that human beings have an instinctive inclination to think about what they should or should not do, and that free will involves the constant tug of war between ‘I wanna’ and ‘I awta.’

Dwight Eisenhower put it this way; as individuals and as a nation, we should seek always to act in our enlightened self interest. Perhaps enlightenment is the one moral imperative on which all people of good will can agree.

We live in an age of communication. We are surrounded by the incessant drumbeat of advertising, solicitation, news, information, and personal communication. We are emailed, facebooked, tweeted, texted, and harangued non stop from television, telephone, radio and computer. Just how much of it is fairly called enlightenment is hard to say.

But it does seem to me that enlightenment about the oughtness of things should be given a rather high priority in human communication. In the last analysis the experience of mankind is the best teacher, and we ignore it at our peril. 

History, indeed, is an imperative teacher. He who does not learn the lessons of history is condemned to repeat the mistakes of the past. It makes no sense to mandate the latest dicta of behavioral science in our classrooms while forbidding the teacher to post the ten commandments on the bulletin board.

We Americans are the fortunate heirs of the civilization known as Christendom. It has enabled us to become a people governed by representatives of our own choosing, committed to the rule of law, and united in the pursuit of justice and liberty.

The Roman Catholic Church is an important part of that heritage. The Pope is its leader. He is not a judge. He is a teacher.

Pope Francis is an Argentine. He doesn’t speak our language, at least not very well, so far. But he is the Pope. The Vicar of Christ on earth. He is a blessing and wellspring of enlightenment for all men and women of good will. He will help us all to figure out for ourselves what is right and what is wrong.

And in the end, our personal judgment is what really matters.

Wednesday, September 30, 2015


The layman’s notion of judicial review is that the Supreme Court can “invalidate” a state law which it determines to be unconstitutional. Admittedly, this is the way newspapers report so-called ‘landmark’ decisions. 
Judicial review is not limited to the United States Supreme Court. Every court, from the lowest county traffic judge, has the same power to determine whether a state law does or does not comply with the state or federal constitution. If a court decides that a statute is unconstitutional, it is the duty of the judge to decide the case as though the statute in question does not exist.
That decision establishes the law of the case, and unless appealed, it determines finally and irrevocably the rights of the parties to the litigation. 
The decision, however, does not determine the rights of any other party. The Fifth Amendment to the United States Constitution affirms that no person shall be deprived of life, liberty or property without due process of law. Due process requires that a person be given a fair hearing before he or she can be jailed, fined or ordered to do anything by a judge. 
In Brown v Board of Education, the Supreme Court wisely overruled the case of Plessy v Ferguson and opined that the United States Constitution is color blind, ruling that the twenty black children of thirteen Topeka, Kansas parents were entitled to attend their local white public school. 
The order issued in that case affected those 20 children and only those 20 children. It was, however, clear to everyone that the Supreme Court was of the opinion that public school segregation laws were unconstitutional and that any state which would continue enforcing such laws would face the obvious fact that their actions would be challenged in court, and that the lower courts would almost certainly defer to the opinion of the United States Supreme Court, unless there was some logical and significant difference in the facts.
Applying the Brown rule in a nation of over 200 million people was not a simple task. Not only in the previously segregated Southern States, but in densely populated Northern cities, the natural tendencies of people to prefer neighborhoods having distinct racial or ethnic character fostered de facto segregation in many neighborhood public schools.
As a result, a number of new cases were filed, leading to a decision commonly referred to as Brown II. In it, the United States Supreme Court ordered a number of State Attorney Generals to submit, within a stated period of time, their plans for the desegregation of public schools “with all deliberate speed.”
Brown II resulted in a complete reversal of Brown I’s salutary finding that the Constitution is color blind. Quite the opposite, Brown II required that students, both black and white, be assigned to schools based on the color of their skin, in an effort to achieve statistical integration.
The result was a period of more than a quarter century of judicial activism in which federal judges ordered children transported by bus long distances from their homes, ordered local taxes to be assessed, ordered school bonds to be issued and ordered new school buildings constructed.
Now, more than 60 years after Brown, more than 70% of black school children still attend schools which are more than 50% black; more than 30% of black children attend schools that are 90% black and about 15% of black children attend schools that are 99% black.
Those statistics are not the result of any organized effort at nullification. They are simply the consequence of a free people in a free country making their own decisions for their own reasons.
Abraham Lincoln made it clear that the Supreme Court makes the law of the case and not the law of the land. That is not learned only in law school; it should be taught in high school civics. Article III of our Constitution vests judicial power, and only judicial power, in the nation’s courts. Courts are empowered to dispense justice on a case by case basis. They are neither established nor equipped to make laws, amend laws, repeal laws or order legislatures to change laws.
Whether a perceived landmark case like Obergefell v Hodges will result in a significant change in American culture will depend on the extent to which the people of the nation accept and act upon the Court’s opinion. If state marriage laws are changed, a cultural tsunami could well occur. If they are not changed, The Supreme Court will pursue a fool’s mission if it attempts to mandate nationwide compliance with Obergefell one case at a time.  

Sunday, September 27, 2015


September 26, 2015

Hon. Greg Stumbo
P.O. Box 1473
108 Kassidy Drive
Prestonburg, KY 41653

Dear Mr. Speaker:

My name is Thomas E. Brennan. I am a former Chief Justice of Michigan and Founder of the largest accredited college of law in the United States.

I write to alert you and your colleagues to the fact that you are confronted with a unique and historic opportunity to assert and defend the Constitutional right of the people of the Commonwealth of Kentucky to enjoy a republican form of government and to exercise the domestic sovereignty guaranteed by the Tenth Amendment to the Constitution of the United States.

The Rowan County Clerk has lately resisted the order of the United States Court for the Eastern District of Kentucky to issue marriage licenses to persons of the same sex in violation of Kentucky Revised Statutes Section 402.005.

She has done so on the mistaken claim that her personal religious beliefs transcend her sworn duty to obey the law. She has sought an amendment to the law exempting her from its rule as an accommodation to her religion.

Such an accommodation would be a departure from established precedent. There is a better way for her and Kentucky to protest the Supreme Court’s usurpation of the rule of law.

You and your colleagues can initiate a peaceful, non-violent form of civil disobedience which will reestablish the primacy of the written words of the United States Constitution.

I urge you to consider adopting an amendment to Section 402.005 of the Statutes which would require County Clerks, whenever they are under court order to issue a marriage license in violation of Section 402.005, to print on the face of the certificate of license, in bold 16 point type, a statement that the license is issued in violation of Section 402.005, upon the order of a court identified therein. Thus:


You and your colleagues are oath bound to support the Constitution of the United States. You are not oath bound to obey the dictum of the United States Supreme Court when they assume the power to amend the Constitution by imagining new interpretations never intended or considered by those who ratified the Constitution or its Amendments.

By adopting this amendment, you will resolve the current misplaced confrontation between the Clerk’s religious beliefs and the her sworn duty, and you will make, on behalf of the citizens of the Commonwealth, and indeed of the nation, a statement that we are a free people not beholden to a judicial oligarchy.


Thomas E. Brennan

Copies sent to:
Louisville Courier-Journal
Lexington Herald-Leader
Lansing State Journal
Detroit News
Detroit Free Press
Cincinnati Enquirer
Wall Street Journal
New York Times
Chicago Tribune

Saturday, September 19, 2015


I remember some years ago, in the heat of a political campaign, former Michigan Congresswoman Martha Griffiths, speaking of an opponent who was a Unitarian, famously observed, “The last time the name Jesus Christ was heard in my opponent’s church was when the janitor fell down the basement stairs.”

For some reason, that name, revered by Christians throughout the world, seems to have some palliative effect on life’s inevitable misfortunes for a great many people.

I recall my pal Mike Devine, of sainted memory, telling about an episode at Franklin Hills or Knollwood during an invitational tournament at which he was the guest of a Jewish lawyer. One of their opponents, also a gentleman of Jewish tradition, had a habit of greeting every poorly executed shot or missed putt with the expletive “Jesus Christ!.”

Mike, whose pixie-esque sense of humor permitted him a measure of candor not available to most of us, sidled up to the fellow and said, “I don’t think Jesus is going to help you very much. He’s my guy. Why don’t you say “Holy Moses?”

Phillipians 2:10 says:
…For this reason also, God highly exalted Him, and bestowed on Him the name which is above every name, so that at the name of Jesus EVERY KNEE WILL BOW, of those who are in heaven and on earth and under the earth, and that every tongue will confess that Jesus Christ is Lord, to the glory of God the Father.

Perhaps it is just a universal human trait to appeal to the divine whenever life’s daily disasters serve up a dose of disappointment or a dish of dissatisfaction.

In any case, in a world full of flippant JC’s and OMG’s, it is a rare thing to think or talk about the Man from whose birth all of our days are counted and whose simple lessons about the human condition sparked a civilization that harnessed the atom and went to the moon.

But that’s what Polly and I did tonight. Our parish is hosting a thing called ALPHA, described as a series of interactive sessions to discuss the Christian faith in an informal, fun and friendly environment. We went, had dinner, watched a video and shared amiable conversation, hearty laughter, and personal insights with two other couples at our table.

The video featured a British lawyer who told of his personal journey of faith. In a very lawyerlike way, he proved that there really was a man named Jesus Christ who really did live in Israel two thousand years ago; that he really claimed to be the Son of the Creator of the universe, and that his followers claimed that he rose from the dead, which no one has ever proved didn’t actually happen.

It was a sufficient dose of Christianity to launch a spirited discussion around our table about belief, marriage, children, grandchildren, and whether indeed the whole world is going to hell in a hand basket.

I couldn’t help but think that the two or three hundred people in that room are the vanguard of a religious remnant, clinging to a belief system scorned by the secular world around us, and watching each subsequent generation slip away from the moorings of faith that have held our generations hard to the tiller of the ship of state.

In the last analysis, religion is all about dying and death. Belief in a life hereafter has been the bulwark of western civilization. Judgment Day is the visualization of human conscience. Saint Peter at the pearly gates is the allegory of our moral compass.

Pope Francis is coming to the United States. Our President will pay him the dubious respect of seating him at table with a roomful of theological dissenters, sexual adventurers, and pontifical naysayers.

Jesus Christ washed the feet of sinners and silently suffered the spit of his tormenters. Francis will do the same. The ridicule, shame, disgrace and blood of martyrs have always been the seeds of Christianity.

Secularists may mock us, ISIS may behead us, but Jesus Christ will be with us until the end of time. Christianity will rise again. And again. And again. 


Thursday, September 17, 2015


Politics being a principal source of entertainment for people of my age, I tuned in to the Republic debates last night. There were several quite stellar performances: Christie, Rubio, Fiorina all scored points.

I was, of course, disappointed that so little attention was given to the Constitution of the United States. I did hear the Tenth Amendment mentioned once, but that was about it.

Of particular interest to me was the discussion about the minimum wage. Ben Carson made the most memorable comment on the subject. He not only favors raising the minimum wage; he would index it for inflation. In addition, he would favor a two-tiered minimum wage, with a lesser amount limited to younger workers.

Of course raising the minimum wage is rarely a plank in the Republican platform. Devotion to the free market dictates that wages are a matter of voluntary agreement between employers and employees.

Still, nobody challenged Dr. Carson, and the subject was shortly abandoned in favor of more personal bickering with Donald Trump.

Ben Carson is a good and decent man, and I am sure that his support of a higher minimum wage is motivated by genuine concern for the folks on the bottom rung of the economic ladder.

Still, I have to say that I was disappointed not to hear anyone suggest that the Constitution of the United States does not empower the federal government to mandate a minimum wage that all employers must pay to all employees throughout the land of the free and the home of the brave.

For what it is worth, I want to weigh in with this thought: a national minimum wage is not only unconstitutional, it is preposterously unreasonable and unfair.

The U. S. Census bureau reports that in 2009, the average wage earner in Idaho made $34,124; in Mississippi, $33,847; in Montana, $33,762 and in South Dakota, $33,352. That same year, the average worker in Massachusetts earned $56,267; in New York, $57,739; in Connecticut, $57,771; and in the District of Columbia, a whopping $77,483.

A package of cigarettes that costs $5.25 in Virginia or Missouri goes for $11.50 in Illinois and $12.55 in New York.

The two major political parties compete almost exclusively on what they claim they will do for ‘the economy.’ Bill Clinton famously coined the phrase, “It’s the Economy, stupid.”

Truthfully, what is really stupid is the tired and phony notion that the political class in Washington, D.C. has the authority and the mission to control or significantly influence the economic decisions of more than 300 million free people.

America has not one, but fifty different economies. We make our money in the States, we spend or save our money in the States. We build or buy our homes in the States, educate our children in the States. We shop and save and invest in the States.

Twenty-nine States have minimum wage laws that are higher than the federal minimum; fourteen have state minimums equal to the federal law, two states have lower minimums, and five states have no minimum wage at all.

That’s the way it is and that’s the way it should be in a Democratic Republic.