Wednesday, March 11, 2015

THE LIVING CONSTITUTION


Couple days ago I had the privilege of speaking to a group of students at  Saint Leo University who are studying Criminal Justice.

The subject was the Miranda warning; that rote recitation of rights which were the usual finale of Jack Webb’s famous Dragnet TV series.

I took the occasion to explain to the students that Judges do not pass laws; they make decisions. Wise decisions become precedents. The Latin phrase is stare decisis which means, “let the decision stand.”

Precedents are valuable because they tell us what the court did and why they did it. When another case comes along, which presents the same reasons for doing the same thing, the courts will typically apply the same rule and come to the same conclusion.

But a precedent only has value because it records what the court actually did. Later courts follow precedents when they do what the previous court did. In the Miranda case, the United States Supreme Court in effect said to the lower courts: “don’t do what we did, do what we said.”

Putting it another way,  appellate courts rule by example not by decree.

In the Miranda case, the Supreme Court reversed the conviction, saying they did it because no warning was given. That is what they did. But what they said was that their ruling was not to be a precedent. They didn’t want lower courts doing what they did.

Had the rest of the courts followed the decision in Miranda, by doing what the Supreme Court did, thousands of convicts would have been released. The Supreme Court reversed the Miranda conviction, then promptly said their decision was prospective only.

Bottom line is that the Warren Court knew darn well that the Miranda conviction didn’t violate the Constitution. If it had, then all other similar convictions were also invalid. The Warren Court was well aware that they were proclaiming a new rule of law, unrelated to the federal constitution.

That explanation prompted a vey bright student in the back of the room to pose this question, “Isn’t the Constitution supposed to be a living document?”

I sensed that she was advancing the familiar defense of an activist judiciary: Times change; the Constitution was intended to last for a long time, therefore it was intended to change with the times.

That familiar proposition is true, of course. But it doesn’t answer the question of how the constitution is supposed to be changed. George Washington made it clear: the constitution is obligatory unless and until it is changed by the explicit and authentic act of the whole people.

The pronouncement of an unelected nine member Supreme Court is not the explicit and authentic act of the whole people.

The constitution is the compact between the people and their government. It expresses the consent of the people to be governed in a certain way by leaders chosen in a defined manner. It is fair to say that a constitution deals with the who and the how of government. Legislatures decide the what.

It is inconceivable that the people of the United States have knowingly tolerated the usurpation of power that has tainted the decisions of the Supreme Court during my lifetime. The only explanation is the dumbing down of  public knowledge about our constitution.

The current court is a virtual cartoon of self aggrandizing elitism. All nine member of the court are graduates of only three law schools; Harvard, Yale and Columbia.

Think about it. There are over 200 accredited schools of law in the United States. The mathematical probability of all nine justices being educated at only three of those schools is something like 0.0000585 to one.

That august body has become a good old boy and girls club. It’s time for  change.



Saturday, February 14, 2015

OPEN LETTER TO UCLA

February 14, 2015

Dean Brad Sears
The Williams Institute
UCLA School of Law
Los Angeles, CA 90095-1476

Dear Dean Sears:

I received an email today describing the work being done by the Williams Institute at UCLA. As a result, I visited your very impressive and comprehensive web site.

It appears that through the generosity of Mr. Williams, the University has been able to recruit a formidable staff of scholars, researchers, writers and speakers which has been diligently and effectively training 3,000 judges throughout the United States.

In reviewing your web site, I was impressed with both the similarity and the contrast between the work of the Institute and the famous Brandeis Brief filed in the 1908 case of Muller v Oregon on behalf of the defendant State of Oregon by Louis Brandeis, who was later appointed to the Supreme Court.

The Brandeis Brief, you will recall, was a ground breaking effort to persuade the court, not so much with historical precedents as with scientific knowledge and other evidence not introduced in the lower courts, such as testimony by medics, social scientists and male workers who argued that long working hours had a negative effect on the health, safety, morals and general welfare of women.

It became a model for many other presentations before the Supreme Court of the United States, a practice which has encouraged the Court to eschew the historic function of adjudication in favor of an activist role as arbiter of the national welfare and culture.

It would appear that the work of the Williams Institute constitutes a massive and exhaustive Brandeis Brief in favor of the LGBT cultural agenda. In the interest of fairness, would it not be desirable to inform the public and all potential litigants of the names of those 3,000 judges who had the benefit of your intensive instruction and attitude training?

I should think that litigants currently before the court debating the marriage issue should be informed which, if any, of the current Supreme Court Justices are among those 3,000 judicial graduates of the Williams Institute.

Sincerely, 



Thomas E. Brennan
Former Chief Justice of Michigan
Founder of Thomas Cooley Law School


Friday, February 6, 2015

SUNDAY MORNING


It’s Sunday morning and I am dressed for Church. I’ll write my check; make it payable to the Saint Leo Abbey where a dozen good men live a peaceful, prayerful life, and a few hundred of the locals will gather to join them in worship at 10:00 o’clock.

I’m thinking of what it means to be a Christian; a follower of Jesus Christ. What does it mean in 2015, a time when Christians are beheaded and crucified in the part of the planet where Christ was born and preached.

He was a good man, a man of peace. “Peace be to you” was his mantra.

He died on a cross, put there at the behest of a theologically misguided mob on the orders of a spineless public official whose only law book was a wet finger held to the wind in search of the “emerging public consensus.”

We’ll pray for peace this morning. We’ll also pray for wisdom, for guidance to make sense of the world we live in. We’ll ask for guidance about how we should feel about Muslims.

Winston Churchill was a member of the House of Commons and a leader of the liberal party during and after the first World War. With counsel from his close friend T.E. Lawrence (Lawrence of Arabia) Churchill was a major participant in the decisions dividing up the Ottoman Empire in the 1920’s.

Like Lawrence, Churchill admired much about the tribal Bedouin culture. The modern map of the Middle East, with its plethora of Arab nations, reflects a decidedly Churchillian influence.

Warren Dockter, a history research fellow at Cambridge University, recently came upon a hand written letter to Winston Churchill from his future sister in law, Lady Gwendoline Bertie in 1907. In it, she exhorts Churchill not to convert to Islam.

In 1940, as Prime Minister, Churchill allocated 100,000 pounds to build a Mosque in central London. It was celebrated in the Arab world, which was precisely what Churchill intended. He wanted Arab support against the Nazis. He didn’t get it.

Dockter doubts that Churchill ever seriously considered converting to Islam. While he admired the fierce, death defying, bravado of Arab warriors, he was keenly aware of the backwardness of Islamic social teachings.

Churchill’s counsel is valuable, especially since he, like Lawrence, was regarded as somewhat of an Arabophile. Here is what he said:

How dreadful are the curses which Mohammedanism lays on its votaries!
Besides the fanatical frenzy,which is as dangerous in a man as hydrophobia in a dog, there is this fearful fatalistic apathy.The effects are apparent in many countries, improvident habits, slovenly systems of agriculture, sluggish methods of commerce, and insecurity of property exist wherever the followers of the Prophet rule or live.

A degraded sensualism deprives this life of its grace and refinement,the next of its dignity and sanctity. The fact that in Mohammedan law every woman must belong to some man as his absolute property, either as a child, a wife, or a concubine, must delay the final extinction of slavery until the faith of Islam has ceased to be a great power among men.

Individual Muslims may show splendid qualities; thousands become the brave and loyal soldiers of the Queen; all know how to die; but the influence of the religion paralyses the social development of those who follow it. No stronger retrograde force exists in the world.

Far from being moribund, Mohammedanism is a militant and proselytizing faith. It has already spread throughout Central Africa, raising fearless warriors at every step; and were it not that Christianity is sheltered in the strong arms of science, the science against which it had vainly struggled, the civilization of modern Europe might fall, as fell the civilization of ancient Rome."   

The “strong arms of science” are no longer the exclusive property of Christendom. ISIS has all the field weapons available in the West. Even nuclear weapons are already available to the 200 million Pakistanis, 95% of whom are Muslim.


I came home from church praying for peace, but wondering how prepared we Americans are to defend ourselves against a militant and proselytizing faith.

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 who 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 the 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.