Wednesday, February 3, 2016

BRENNAN V BRENNAN

In 1970, when I was Chief Justice of Michigan, I met President Richard Nixon at a seminar in Colorado. He looked at my name tag, and asked me if I was related to Mr. Justice William Brennan of the United States Supreme Court.

“No, Mr. President,” I answered. “I am not related to Justice Brennan by consanguinity, affinity or philosophy.” Nixon gave me a warm handshake and a big smile.

William J. Brennan was an effective leader of the activist, progressive wing of the nation’s highest court. After he died, his devotees created the Brennan Center for Justice at New York University. The Center is an avowed advocate of judicial activism. Its web site says it this way:

“we lead an ambitious new initiative to develop and articulate a compelling progressive jurisprudence for the 21st century”. 

Furthering this goal, the Brennan Center has joined with Common Cause, and several other activist and progressive organizations to rail against the idea of an Article V Amendatory Constitutional Convention.

Like their antithesis at the other end of the political spectrum, the John Birch Society and The Eagle Forum, the Brennan Center and their liberal cohorts paint a scary picture of a dictatorial cadre of constitutional spoilers hell bent on depriving Americans of their God given and constitutionally recognized rights.   

So there it is. Both sides of the aisle. All the opinion makers, the think tankers, the Rightees and the Leftees. They all love our wonderful constitution. They call it sacred. They honor it. The support it, Nay, they literally worship the paper it is written on.

All except Article V. All except the notion of letting the people of the United States, who wrote and ratified the Constitution, assemble in convention and propose amendments.

The people are not to be trusted, they say. Shop keepers, truck drivers, housewives, students, for heaven’s sake, what do they know about the principles and powers of government which “to them shall seem most likely to effect their safety and happiness” as Thomas Jefferson wrote.

They insist that the Declaration of Independence and the Constitution, were written by giants, prophets, geniuses, saints, and they claim that there is no one living today smart enough, good enough, wise enough, prescient enough to even discuss amending the constitution, much less actually propose an amendment. 

The ramrod argument of the nay sayers always comes down to something like this: The constitution doesn’t tell us how the convention is to be organized. Who will be the delegates? How will they be chosen? Who will make the convention rules? Who will decide on the agenda?

And that always leads to criticism of the various initiatives seeking to get Congress to call a convention. Who are they? Who’s really behind it? What are they up to? Which, of course, then segues over to a chorus of insinuations, speculations and accusations.

Politics as usual.

In the midst of it all, I confess to being the lesser Justice Brennan, neither conservative nor liberal. Just an old fashioned American populist who believes that a free people are competent to govern themselves, and that our Constitution is the Peoples Charter. The people wrote it and adopted it. The people are competent to amend it.

Which is why I founded Convention USA. Which Is why I have spent countless hours and dollars creating a real live, honest-to-God assembly of representatives of the American People on the Internet. Six thousand six hundred sixty-six delegates, one for every 50,000 people in the nation, drawn from every county in the fifty states and chosen in non partisan elections.

The establishment folks, the professional, academic, political, corporate and organizational elite can ignore us. They can ridicule and they can laugh. But they can’t stop patriotic citizens from registering as delegates at:

Tuesday, February 2, 2016

TAXES AND DEATH


They say that the only two certainties are taxes and death. You know you are still alive when you file the annual return with the Internal Revenue Service.

An encouraging thought at my age. Couple years ago, a friend put me on to TurboTax. Used to be I would spread cancelled checks, receipts, tax forms and yellow legal pads all over the dining room table and ensconce myself in a chair for a fortnight to determine how much I owed to Uncle Sam.

Turbo Tax condenses all of that into a tidy session in front of the computer.

All of which leaves me time enough to contemplate the meaning of taxation and how it fits into our beloved system of constitutional governance.

The United States of America is the only nation on the planet which boasts – or tolerates – dual sovereignty and dual citizenship. We are citizens of states and citizens of a nation. Both entities are sovereign.

Sovereignty is a rather simple concept. It means complete power over a place including, of course, the power to tax. Taxation, at the bottom, is nothing more nor less that stealing. The government takes money from the people, if need be, at the point of a gun or under penalty of incarceration.

Since we Americans are subject to two sovereignties – state and national – the question arises whether both governments have full and absolute power to tax us.

It’s a question many of us ask – rhetorically at least – every year: is there any limit to taxation? Is there such a thing as a maximum tax, or a limit beyond which government cannot reach the property of the citizens?

It seems to me that in a republic, the answer to that question is ‘yes.’ There is a limit to taxation. It is not spelled out in the constitution, nor can it be defined in mathematical terms. It is rather, a function of politics. Taxation is limited by the consent, or tolerance of the governed.

At the far end, excessive taxation results in civil disobedience, revolt and ultimately revolution. In the normal course, however, the sovereign authority of the people is expressed at the ballot box.
From which I think it fair to conclude that, in light of continuing deficit spending and increased borrowing by the national government, the income tax rates currently in place represent the maximum tax rates which will be tolerated by the citizenry.

Which is to say that 39.6% is theoretically as big a bite as government can take.

How then, are we to factor in the state income tax? If we just add the state tax to the federal tax, obviously the effective rate is higher than 39.6%.

Of course, under our current law, state income taxes are deducible from the income which is taxed by the federal government, so the federal tax is reduced by the federal tax on the amount of the state tax.

This is a delicious mathematical puzzle to roll around in your head. If you suppose that both the federal and the state governments impose a 100% tax, you wouldn’t have to pay 200% of your income to the governments. The state tax would preempt the federal tax, and you would pay only state tax.

Currently, the highest state income tax rate is California’s 13.3%. You have to wonder what would happen if the several states were to boost their income tax rates so as to be comparable to those imposed by the national government.

Unfortunately, because Uncle Sam has preempted the income tax arena, the states are left to pander to the politicians in Washington in the hopes of getting some of their taxpayers’ money back.

Frankly, I believe, and most folks agree, that money spent closest to home is most wisely distributed. Certainly the national government has to be adequately supported to maintain our national defense and our prestige around the world, but the vast bulk of social programs and discretionary spending should be at the state level.

Which is why I insist that state taxes should be a credit against federal taxes, and not just a deduction against taxable income.



  

Monday, January 25, 2016

TWEET TWEET

Recently, I have started to tweet. Yes, that’s a very funny noise for an old man to make. Of course, I am not actually trying to imitate a canary.

No sir, I have aspired to be a modern man. A child of the mew millennium. I have opened an account on Twitter and I have begun to spray the Clouds with snippets of superannuated judicial wisdom.

I haven’t a lot of followers so far, but if my followers don’t follow me any more than I follow the people I am following, it really doesn’t matter.

I just send my quips to famous people so I can tell myself that I am participating in the public dialog. It’s a heady feeling to be exchanging tweets with Megyn Kelly, even though we never talk about the same thing.

Anyway, I did get a tweet the other day that seems to have come from someone who knows who I am and has read some of my writings. The tweeter feigned surprise that a former supreme court chief justice had never heard of one state, one vote.

A little obtuse, but I took it to mean that the writer is critical of my effort to organize an Article V amendatory constitutional convention, and that he, or she, is a devotee of one of the several other efforts to call a convention of the states.

Indeed, the tweeter may well have viewed the little video I included in my last blog. In it, I rather pointedly said that an Article V convention is an assembly of the people of the states or their representatives. That proposition flies in the face of those who insist that Article V authorizes a convention of the states – meaning the state governments or the state legislatures rather than the people of the states.

There is a very significant difference.

First of all, no state legislature is elected to bargain away the sovereignty of the people. Their role is to exercise the people’s sovereignty by passing laws. That is what they are commissioned to do.

The preamble of the constitution of 1789 begins with a these words, “We the People of the United States…”  It does not say, as the Articles of Confederation said “We the undersigned delegates of the states…”

The reason is obvious. The founders knew that a constitution is the solemn covenant by which the people give their consent to be governed. It is, as George Washington said, “the explicit and authoritative act of the whole people.” 

It may be, and indeed is, argued that the state legislatures speak for the people of the state, and therefore, if the legislature agrees, the people have agreed.

The problem with that is that every state except Nebraska has a bi-cameral legislature. This means that, like the national government, state governments represent a compromise between populations and communities, with the larger house being more attuned to the actual population.

And even if only the general assembly or house of representatives is considered, there is enormous disparity among the lower houses of the fifty states legislatures.

California’s general assembly consists of only 80 people to represent 38 million inhabitants. At the other end of the spectrum, New Hampshire’s 1.3 million people are represented by 400 members of its House of Representatives. Which means that Golden State politicians speak for nearly half a million people while every 3,291 folks in the First Presidential Primary State, have a voice in Concord.

The other 48 states have widely scattered constituent ratios. Only seven of them are between 40 and 60 thousand to one.

The bottom line is this: even given that 38 states must ratify a constitutional amendment, it is essential that the voice of each state is the voice of its people.


In Convention USA, www.conventionusa.org we have done the leg work. Without partisan gerrymandering, we have created 1,110 districts with constituent ratios approximating one to fifty thousand. The delegates will represent the whole people, even as they vote state by state.

Wednesday, January 20, 2016

Going Viral

There are only about seven hundred of you, dear readers. The old Judge’s blog is hardly what might be called mainstream media.

Still, I like to think that when I write these little essays, some of you will think them of sufficient interest to forward my announcement to some of your friends and relatives.

Candidly, I am often surprised to read about some of the odd ball things on the Internet that go viral.

Of course, you have to admit that little kids are cute. And some not so cute.
Here’s one that got over 36 million hits:


Thirty-six million! Even if everyone in their home town looked at it a hundred times, it had to be seen by one heck of a lot of eye balls.

Admittedly, my interests aren’t as sexy as most of the viral videos. Still, I do write about many of the things that the guys gab about in the neighborhood bars and the ladies belabor at book club.

And heaven knows there is a lot of talk on television about the government. Matter of fact, it sometimes seems that’s all the talking heads talk about, and nobody seems to be very happy with it.

Which brings me to the point of this blog. I have decided to try my hand at being a talking head.

It’s not what you would call a professional effort, but then most of the stuff that treks across the Internet starts out in somebody’s kitchen. My effort was recorded in my son-in-law’s den.

Anyway, I’ll cut this blog short to leave you some time to listen to the old judge. I hope you will pass it along to the folks on your contact list.











Sunday, January 10, 2016

Hasan Update


Nidal Hasan isn’t in the news. I can’t find his name in the New York Times or in USA Today. Not last week or last month.

The most recent public mention of the army psychiatrist who murdered thirteen people and wounded dozens more at Fort Hood in 2009 was a story on April 10, 2015 to the effect that 47 people who were injured in the Fort Hood massacre were given either the Purple Heart or the Defense of Freedom Medal.

The Purple Heart has normally been reserved for members of the U.S. military who are wounded in battle. That qualification has been expanded to include members of the armed services who are injured on American soil by acts of international terrorism.

I pondered this story. Certainly the Fort Hood casualties were not injured in battle. If they had been, are we to assume that Nidal Hasan is now classified as an enemy combatant? Or if it was an act of international terrorism, has it been determined that Hasan was acting on instructions from a foreign terrorist organization?

In either case, I have to wonder if the decision to award those medals – which, incidentally involved a reversal of the original classifications of the offense as work place fatigue and/or domestic homicide, might just foretell a request for a new trial based on the claim that Hasan was, indeed, an enemy combatant.

Far fetched as that may sound, the fact is that in August of 2014 Hasan wrote to Abu Bakr al-Baghdadi, spiritual leader of ISIS, to request that he be admitted to citizenship in the Islamic caliphate Baghdadi leads.

Hasan perpetrated the Fort Hood massacre on November 5, 2009, more than six years ago. The history of his confinement and trial since then is a disgraceful account of American military ineptitude, bungling, stumbling and procrastination.

It took almost four years just to bring Hasan to trial. Among other nonsensical delays was one incident of judicial paralysis brought about by the defendant’s refusal to shave his face before appearing in court.

The best I can divine out of the current Fort Hood news blackout is that Nidal Hasan has been convicted of murder, and the jury has returned a recommendation of the death penalty.

I think we can assume that the jury recommendation will require some sort of judicial confirmation; that sooner or later Hasan will be brought before a military court and a military judge will pronounce the sentence of death by whatever means is specified in the code of military justice, and will order that the sentence be carried out on a day certain to be pronounced by the court.

That court order will trigger immediate appeals, both to the higher ups in the military chain of command and to the Article III courts of the United States, including the Supreme Court.

There is one thing I can predict with almost moral certainty: Nidal Hasan will not be executed during the tenure of Barack Hussein Obama as President of the United States.

From his first moments in office, the forty-fourth President of the United States has postured himself as a diplomatic link between the people of the United States and the 1.7 billion Muslims on Planet Earth. By his name, his paternity, his early education and his political disposition, the President has been perceived as a good will ambassador, whose presence in the White House was supposed by many to be insurance against Islamic hostility.

It has not been so. Neither has the era of domestic post-racial brotherhood he predicted come to pass. Americans have been disillusioned by the ineffectiveness of symbolism especially when augmented by indecision and procrastination.

The Obama era is coming to a close. America needs and perforce will have new leadership. I have Tweeted the major Presidential candidates and the news media, asking who will announce that on his or her first day in office the army will be instructed to carry our the sentence on Nidal Hasan.   


The silence is deafening.