oldjudgesays

SNAKE OIL POLITICS

2012-02-11T09:48:00.000-08:00

Chinese laborers who help to build the transcontinental railroad in the 19th century introduced Americans to a pain relieving salve made from snake oil.

Imitators popped up all across the western states, traveling peddlers who hawked all kinds of phony concoctions which supposedly contained snake oil and were good for whatever ailment you had.

Snake oil salesmen were shameless frauds who made preposterous claims, often invented on the spur of the moment. They usually had a shill in the audience who would loudly affirm every miraculous cure the hustler described.

And so the phrase “snake oil salesman” became a staple in American culture.

He was a regular character in all the cowboy shoot-out movies.

Perhaps the most celebrated arch type of the snake oil salesman was Professor Harold Hill in the musical comedy, “Music Man.” A likable scalawag, Hill managed to bamboozle the whole town of River City with fast talk, big promises and superficial charm.

Move over, Robert Preston. You have just been replaced by Barack Obama.

Yesterday, the American people were treated to the most brazen snake oil pitch ever delivered from the back of a chuck wagon or from the oval office.

Faced with a nationwide uprising of Catholics over his insistence that all employers provide health insurance which includes birth control pills, the President went on national television and announced that his administration had come up with a compromise solution.

With a perfectly straight face and a confident air of benign authority, Mr. Obama told us that objecting employers would no longer be required to pay for birth control.

No sir, the employers will not be required to pay for something their religious conviction forbids.

The insurance companies will.

Duh?

Catholic employers were complaining because they were being required to carry insurance that covered birth control. They were never going to pay for the pills directly. The insurance companies were always going to be the ones to write the check.

Before Obama opened his mouth yesterday, employers were complaining about what their mandated health care insurance was going to pay for.

The snake oil President came up with a wonderful “compromise” solution.

He tells Archbishop Dolan, “You don’t have to pay for it.” Of course, you still have to carry insurance. And the insurance company still has to pay for birth control pills.

Exactly where, Mr. President, is the insurance company going to get the money to pay for the birth control pills?

Insurance companies get their money by charging premiums to their customers. They figure out how much to charge by keeping track of how much they have to pay out in benefits.

So now the actuaries and the accountants who work for the insurance companies can’t have a line item called “birth control benefits.” Birth control pills are a freebee. So put it under “miscellaneous.”

Or whatever. But the cost of birth control pills isn’t going to come out of insurance company profits. Even the President of the United States can’t make that happen.

No sir. The Catholic hospitals are still going to pay the premiums, and the premiums are still going to cover birth control pills.

America has heard the White House snake oil pitch.

Now it’s time for all the loyal shills in the audience to start cheering.

CON LAW EXAM

2012-02-10T21:41:00.000-08:00

You won’t read about this in the New York Times, or even in the Detroit News.

And don’t bother checking with Snopes. It’s a just a hypothetical question, but I have no doubt that this story or some version of it will show up in the final examinations of Constitutional Law classes in law schools across America:

Mustashfa Islaam is a seven hundred bed full service hospital in Dearborn, Michigan. Organized as a non-profit corporation, its thirteen member Board of Directors consists entirely Muslim doctors, Elders of the local Mosque and Muslim businessmen.

In addition to the physicians who practice there, Mustashfa Islaam employs 1,123 people in various capacities including nurses, aides, therapists, clerks, chefs, receptionists, orderlies and administrators. About 18 percent of these employees are not Muslims. Fifty-nine percent regularly or occasionally consume alcoholic beverages. Roughly ten percent of the non-Muslim employees and three percent of the Muslim employees use marijuana as a recreational substance.

In 2012, as authorized by the Affordable Health Care Act, Kathleen Sebelius, Secretary of Health and Human Services, promulgated regulations with respect to the coverage which employers would be required to provide in all qualified employee health care plans.

Among the specific coverages mandated by HHS were alcohol, when prescribed for medicinal purposes and medical marijuana. The regulations required that such services be made available without any co-pay to all employees.

The Holy Quraan states: "They ask Thee concerning Wine and Gambling, Say: In them is great sin, and some profit, for men; but the sin is greater than the profit." (Surah Al-Baqarah:219)

The Quraan further states in Surah Al-Maaidah verse 90: "O Ye who believe! Intoxicants and Gambling, Sacrificing to Stones, and (divination by) Arrows, are an abomination, of Satan's handiwork; Keep away from such, that Ye may prosper."

Umme Salmah narrates that the Messenger of Allah prohibited every intoxicant and Mufattir (anything which excites and irritates the mind, body and heart.)

Islaamic Mullahs and Imams in the United States are generally in agreement that the proper interpretation of these passages is that consumption of alcohol or use of recreational drugs is forbidden by Allah and is grievously sinful.

Health insurance carriers calculate premiums based upon assessment of the risks associated with their policies. Entitlement to health care benefits is contingent upon future injuries, illnesses and health care needs. The financial benefit of health insurance as against paying for one’s health care as the needs arise, depends upon the occurrence or non-occurrence of unknown future events and conditions.

A narrow majority of the Mullahs and Imams in the United States are of the opinion that insurance is a form of gambling and therefore anathema to Islaamic believers.

Ninety-two percent of the hospital’s employees own automobiles, and as required by state law, carry liability insurance on their vehicles. Seventy-one percent have some form of life insurance.

The First Amendment to the Constitution of the United States provides: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

On February 8, 2012, Mustashfa Islaam’s Board of Directors voted unanimously to oppose the mandate of the Department of Health and Human Services, on two grounds: First, that it prohibits the free exercise of their religion by requiring the hospital to enable its employees to violate the tenets of the Muslim faith without expense, and Second, that by forcing the hospital to tolerate and even encourage its employees to violate their religious beliefs, the Congress has made a law respecting the establishment of religion, by approving and encouraging activities regarded as sinful in Islaamic theology, in effect legislating and mandating a different standard of morality than that which is recognized and observed by Muslims.

Counsel for the hospital will soon institute litigation in the Federal District Court for the Eastern District of Michigan, challenging the Sebelius mandate.

Discuss and decide the case.

If you decide in favor of the Plaintiff’s, would a different result be justified if the cost of the coverages objected to were to be eliminated from the calculation of the health insurance premium?

SMOTHERING OPPOSITION

2012-02-07T04:56:00.000-08:00

The Obama Administration has decreed that employers must provide health insurance to their employees which includes free birth control pills, abortifacient drugs and sterilization.

Doesn’t sit too well with the Catholic Church.

Timothy Michael Dolan, Archbishop of New York, and soon to be elevated to the rank of Cardinal, is the Chairman of the United States Conference of Bishops.

He asked Catholic Bishops to write to the people in their dioceses and express the concern of the church for first amendment freedom.

Visiting friends on Marco Island, I attended a 10:45 Mass that was standing room only. When the bishop’s letter was read, one fellow got up and left. Lucky for me. I took his seat.

The bishop’s letter was a strong defense of the first amendment right of freedom of religion. When the Deacon read the words, “we cannot, we will not comply with this unjust law” the congregation broke into applause.

Of course, lots of folks in America are up in arms about Obamacare.

The very idea that the federal government can force people to buy insurance runs contrary to our notions of freedom. To require that such mandatory insurance must contain provisions which offend the consciences of citizens and violate the tenets of their church adds insult to injury.

Archbishop Timothy Broglio, who heads the Archdiocese of the Military Services, is one of the many American bishops who issued pastoral letters protesting the Obama administration’s mandate.

But his letter didn’t get read in the army chapels. The Army’s Office of Chief of Chaplains nixed it, sending an email to senior chaplains directing that they merely mention the letter and allowing copies to be distributed after Mass.

So now freedom of speech goes in the tank along with freedom of religion.

T. H. White in his Arthurian allegory, Once and Future King describes a colony of ants living on a rock into which they had burrowed a mass of tunnels. Over the entrance of each tunnel was posted the warning: Whatever Is Not Compulsory Is Prohibited.

That phrase, or some version of it, has become a kind of short hand definition of the political system known as totalitarianism.

Big word, but nothing new. Totalitarianism has been around as long as mankind. It is very simply a form of government in which one person is the absolute ruler. Unlike monarchy, where the power stays in the family, totalitarian rulers come to power and stay in power by a process of assertion and acquiescence.

When we were kids, we called it “King of the Castle.” You pushed everyone else off the bed, then chanted, “I’m the King of the castle and you’re the dirty rascal.”

The rascals would get together and depose the king and someone else would start the chant.

Sort of like what’s going on in Lybia, Egypt and Syria.

And in the United States. We call it the Presidential election. Used to be we had a presidential election every leap year. Now we have ‘election cycles’ which start the day after the last election.

Used to be we were a constitutional republic. The consent of the people was given in writing. The constitution, in the words of George Washington, was the explicit and authoritative act of the whole people.

Lincoln spoke of government of the people, by the people and for the people not of, by and for the majority.

We’re told that the majority of Americans, even of Catholics, use birth control.

And therefore, we shall all pay for it. The President and his army have said so.

And he is, after all, the King of the Castle, isn’t he?

SEXY DEBATE

2012-01-29T20:28:00.000-08:00

I often wonder if anyone reads the musings of the Old Judge. Hardly any comments get posted on the web, and emails approving or disapproving are rare.

But I did get a boost a week or so ago. As my golfing buddies gathered on the practice tee, one after another gave me a shout out. “Saw your blog, Judge.” “Read your blog.” And words to that effect.

They were talking about a blog entitled Sex For Dummies.

Now I don’t think my pals would consider themselves dummies, so I came to the conclusion that what attracted their interest was the word “sex.”

Ah, yes. Sex appeal. It sells cars, clothes, insurance and real estate. It’s the subject that gets everyone’s attention. So much so that the phrase ‘sex appeal’ has come to be a description of anything which has instant, visceral attraction to people in general.

And of course, ‘sex appeal’ in that sense is endemic to the political word.

Most people think that political speeches are boring, political campaigns are ugly, politicians are self-centered and self-aggrandizing.

Trying to get and keep the attention of the public is the principal interest and effort of campaign managers and political strategists.

And of course, of the media which reports their doings. What questions can you ask, what subjects can you debate which will titillate the audience?

The Jacksonville Republican debates were a good example. Wolf Blitzer is an old pro, and he certainly did what the suits in the corporate offices expected of him.

He asked Newt Gingrich about his attack ads against Mitt Romney. Which guaranteed that the next five minutes of the Presidential debate would be devoted to back and forth accusations about who said what about whom and who lied or exaggerated about whose wealth, taxes, income and bank accounts.

I suppose that’s the kind of television the corporate moguls at CNN think is red meat for the couch potatoes in the hinterlands. Had they thought of it, I’m sure they would have brought on Vanna White to flip placards introducing each topic of debate.

For my part, I wonder when candidates for President of the United States will begin to talk about the financial condition of the nation and what must be done about it.

If the stockholders of a corporation that was fifteen trillion dollars in debt were meeting to elect a president of the company, I doubt that they would want to hear about what a candidate’s second wife claimed he wanted to do in bed, or what bank accounts another candidate has in Switzerland or the Cayman Islands.

I think the stockholders would be more interested in hearing exactly what the candidates would propose to do to keep the company from going bankrupt.

Unless I have been grossly mislead, I understand that the credit of the United States of America has been downgraded, that other nations are organizing for the purpose of creating a new international reserve currency to replace the American dollar, that the Federal Reserve is currently issuing paper money at a rate that threatens hyperinflation.

I doubt that Americans have much stomach for hearing about or even thinking about the hard choices that confront us.

But the debate that needs to be conducted is exactly this:

RESOLVED: THAT TO SURVIVE AS A GREAT NATION AND A FREE PEOPLE, THE FEDERAL GOVERNMENT MUST BE DOWNSIZED AND LIMITED TO THOSE ACTIVITIES WHICH WERE CONTEMPLATED BY THE FOUNDERS OF THE NATION AND EXPRESSED IN THE CONSTITUTION OF THE UNITED STATES.

Do we really need 479 boards, bureaus, agencies and offices in Washington?

Can we afford a Nanny State?

And who has the experience and the chutzpah to do what needs to be done?

BINARY POLITICS

2012-01-22T16:08:00.000-08:00

The secret that unlocked the computer revolution is a thing called binary code.

Binary basically means “two numbers.” Zero and one. All numbers and words can be expressed in binary code. That’s how computer chips work. They toggle from on to off, from positive to negative from zero to one at instantaneous speeds.

Here’s what my name, Thomas Brennan, looks like in binary:
0111010001101000011011110110110101100001011100110010000001100010011100100110010101101110011011100110000101101110

So what has this to do with politics?

Logic. Binary is the basic expression of logic. Everything either is or it isn’t. All human decision making boils down to the ayes and the nays.

Either you do or you don’t.

That’s why we have two political parties in the United States. There’s nothing official about it. Nothing in the Constitution or laws limiting political activity to two parties. It’s just that every decision eventually comes down to doing or not doing.

In a democracy where the majority rules, you have to have a majority to do anything. “No” votes don’t have to agree with each other. If the majority votes “no,” it doesn’t happen.

The same is true in Presidential politics. The Constitution requires that the office of President goes to the candidate receiving a majority of the electoral votes.

If no candidate garners a majority of the Electoral College, the decision must be made by the House of Representatives. In the House, each state’s delegation has one vote.

As a result of its strong showing in the off year election of 2010, the Republican party controls a majority of 33 state delegations, while the Democrats control only 17, including the delegation from the District of Columbia. One state, Minnesota, has a divided delegation.

Enter Peter Ackerman.

Interesting fellow. Graduate of Colgate University and the Fletcher School of Law and Diplomacy at Tufts University.

He apparently made a lot of money as an investment banker with Drexel Burnham Lambert because he has had a lot of time to devote to idealistic causes.

Founding Chair of the International Center on Nonviolent Conflict. Chairman of the Board of Freedom House, a non governmental research and advocacy organization founded by Wendell Willke and Eleanor Roosevelt. Board Member of the Council on Foreign Relations, a non-partisan, non-profit, foreign policy think tank.

In 1990, he went to England as a visiting scholar at the International Institute for Strategic Studies, after which he co-authored a couple of books and helped produce some television documentaries about non-violent political activity .

About a year ago, Ackerman plunked down five million dollars to launch Americans Elect, an effort to create a third political party in the United States which would draft its platform and nominate its candidate for President on the Internet.

It has a very sophisticated web site at www.americanselect.org.

Americans Elect has announced the goal of qualifying to place its candidates on the ballot in all fifty states, and they are well on the way.

Perhaps, just perhaps, Peter Ackerman will succeed where Ross Perot, Ralph Nader, George Wallace and Strom Thurman failed.

If Americans Elect can win enough electoral votes to deny a majority to either the Republican or Democratic candidate, the next President of the United States will be chosen by the Republicans in the House of Representatives.

Or, perhaps by a coalition of non-Tea party Republicans and Democrats.

Or, maybe, a coalition of Tea Party Republicans and Blue Dog Democrats.

Whatever the realignment of American politics, the irrefutable fact is that it takes a majority to govern. There are only two choices. Either you win or you lose.

Just like the Super Bowl.

THE AMERICAN DREAM

2012-01-21T13:22:00.000-08:00

An economics Professor at Valencia College in Orlando starts his sophomore class by asking the students to write a ten minute essay describing the American Dream and what the federal government should do about it.

A wide majority of the students concluded that the American Dream consists of having a job, a house, a car, and a secure retirement.

It’s the duty of the federal government, according to these nineteen and twenty year old experts, to provide all of these things. And, of course, free college tuition.

These are kids whose parents, maybe grandparents, were enthralled by John Lennon’s 1971 release “Imagine.” Do you remember the lyrics?

Imagine there's no heaven
It's easy if you try
No hell below us
Above us only sky
Imagine all the people living for today

Imagine there's no countries
It isn't hard to do
Nothing to kill or die for
And no religion too
Imagine all the people living life in peace

You, you may say
I'm a dreamer, but I'm not the only one
I hope some day you'll join us
And the world will be as one

Imagine no possessions
I wonder if you can
No need for greed or hunger
A brotherhood of man
Imagine all the people sharing all the world

You, you may say
I'm a dreamer, but I'm not the only one
I hope some day you'll join us
And the world will live as one

Not exactly passé` that ditty. Over 275,000 people have visited its web site since November, 2011.

Ah, the contradictions of utopia. There are no possessions, but everyone has a house, a car, and a retirement fund.

And world peace, just like the beauty queens pray for. No hunger, no greed. No killing and dying. No reward for virtue, no punishment for sin.

Indeed, no need for thinking. In Lennon’s perfect world, there’s no worry, no sorrow, nor pain nor grief. Of course, he also offered no victory, no joy, no happiness to be pursued.

And so the words of a drug addled musical genius have left their mark on our culture.

Eleven months before the Japanese attacked Pearl Harbor, Franklin D. Roosevelt proclaimed an international goal of assuring Four World Wide Freedoms. The first two were familiar to Americans; freedom of speech and freedom to worship God in our own way.

The third and fourth were new. Freedom from want would be achieved by international economic agreements, such that each nation could provide a healthy life for its own people.

Freedom from fear was to be accomplished by international disarmament, such that no nation would have the capacity to attack another.

Unhappily, FDR’s four freedoms have been truncated over the last seventy years. The ideas that government has the duty to provide freedom from want and freedom from fear have become hallmarks of domestic policy in the minds of many Americans.

Roosevelt’s dreams were short lived. Before the year was out, he was summoning the nation to mobilize and to sacrifice.

History has shown that peace is more likely achieved by a balance of terror among nations capable of pulverizing one another than by mutual disarmament.

This planet is a hard place to live on. Nature has its Tsunamis, and people have their faults.

The sophmores will learn that there’s a lot of heavy lifting to be done.

SEX FOR DUMMIES

2012-01-18T20:19:00.000-08:00

When whoever or whatever invented the human race, people were designed in two models. Pink and blue. Boys and girls. Guys and gals. Men and women. Male and female.

They’re both human beings. Homo Sapiens. Both are distinguished from lower forms of animal life by their attributes of intellect and free will.

But they are different from each other. Right from the get go, you can see that the plumbing is different.

Most of the other differences are related to those organs. The Inventor has infused us with a powerful mating urge. It affects our thoughts, our emotions, challenges our intellects, tugs at our free will.

The reason is pretty obvious. Sexual activity undergirds the continuation of the human race. It’s a matter of life and death.

You don’t have to teach kids how to copulate. If you put a male infant and a female infant on a desert island and raised them with robots, they would figure out what to do with their sex organs at about age 14 if not before.

But the mating instinct is more than the urge to press pelvis to pelvis.

Human beings are hard wired to experience a whole panoply of emotions that expand the act of sexual intercourse into a relationship which has the same purpose and effect: the continuation of the human race.

And so men and women who engage in sex with each other are said, even in our hedonistic culture, to be ‘in a relationship.’ The simple, popular name to put on it is ‘love.’

But there is nothing simple about it. When people engage in the activity which makes babies, they experience a whole range of feelings and emotions.

They feel protective and protected. They feel possessive and possessed. They have been connected and they feel connected. It’s nature’s way of assuring that new born infants are not left to die nor toddlers left to fend for themselves.

These are rather simple observations which persons of normal intelligence can pretty much figure out for themselves.

Unhappily our free will sometimes gets ahead of our intellect. People who understand quite well that the purpose of eating is to nourish the body can nevertheless consume three hamburgers in four or five minutes to win a contest.

Just knowing the purpose of the mating instinct doesn’t stop people from prowling singles bars in search of a one night stand.

A society that treats sexual intercourse as no more significant than a game of table tennis and condones myriad forms of sexual gratification that have nothing to do with procreation may ignore, but cannot repeal, the laws of nature.

The consequences for society are apparent. Single moms. Single Dads. Broken families. Houses that aren’t homes. Kids that aren’t children. Grown ups that aren’t grown up.

A ‘Me’ generation followed by a ‘Me Too’ generation will not support a vibrant, productive economy. Hedonism is not a viable political philosophy. Even Ron Paul would agree with that.

There’s more. The idea that anything goes when doors are closed has a pathetic human dimension. It’s called Viagra. It’s called Cialis. It’s called erectile disfunction in healthy males. Daily use? Who are you kidding? Get a life!

A wise woman once told me that orgasm is in the brain. And so it is.The Great Inventor didn’t intend people to be constantly acting like love bugs until they hit the windshield.

Sex is the most powerful urge of our nature. It drives men and women to great heights of effort and achievement. The cycle of anticipation and fulfillment provides the greatest measure of happiness that is allotted to mortals in this veil of tears.

Indeed, abstinence is the most powerful aphrodisiac.

MONEY IN POLITICS

2012-01-16T17:36:00.000-08:00

When I was sworn in as a Justice of the Michigan Supreme Court in 1967, my salary was $35,000 a year. Adjusted for inflation, that would be equal to $237,067 today.

The compensation of the justices has not kept pace with inflation. Today, they are paid $164,610.

Supreme Court Justices in Michigan are elected on a state wide ballot. My campaign in 1966 cost about $60,000. By contrast, supporters of current incumbents have spent as much as ten million dollars to secure a seat on the court.

No doubt the story in Washington is similar. Probably worse.

Month or so ago, I got a letter from Marco Rubio. Very bright, attractive young Senator from Florida, who was elected in 2010. He’s getting a lot of attention as an up and coming new Republican.

What caught my eye was the fact that his letter pitched for a campaign contribution.

Campaign contribution?

This fellow was just elected in 2010. He doesn’t have to run for reelection until 2016. That’s still four years away.

In his book, Republic, Lost: How Money Corrupts Congress, Lawrence Lessig describes the unholy alliance between members of Congress and the battery of lobbyists who dwell on K Street in the nation’s Capital.

Lessig insists it’s not bribery. At least not in the crass quid pro quo Blagojevich mode. But the fact that solicitations and contributions are made with finesse does not alter the nature of the beast. Congressmen and Senators ask for money all the time. And they ask the people they think are most likely to give.

The antidote offered by our politicians has been to create the Federal Election Commission. The Commission is what is known as an independent regulatory agency. Its six Commissioners, three Republican and three Democrat, are appointed by the President, confirmed by the Senate.

I took a look at the Rules and Regulations published by the FEC. The Index alone ran to 19 pages.

The Federal Election Commission has adopted a multitude of complicated rules and regulations. Truly marvelous examples of bureaucratic obfuscation.

And while lobbyists wine and dine the members of Congress and pour money into the coffers of their campaign funds, what does the Federal Election Commission spend their time, energy and budget doing?

Suing the Wisconsin Right To Life Organization. I’ll bet you didn’t know the Wisconsin Right To Life Organization is the principal source of corruption in Washington D.C.

I sure didn’t.

WRTL was running ads critical of Senate filibusters blocking the appointment of pro life judges. It took the Supreme Court of the United States to remind the FEC that the First Amendment is still in effect.

The very idea that the culture of corruption in the nation’s capital can be reversed by a regulatory agency is absurd. Even if they could bug every booth in every restaurant from Chevy Chase to Falls Church, and point surveillance cameras at every park bench, they could not begin to police the incessant give and take between the legislators and the legislated.

The problem with money in politics has to be addressed structurally. I gave the powers that be some ideas on how to get the money out of Michigan Supreme Court elections. The ball’s in their court.

In Washington, the reformers are divided. Some want to stop the flow of money by more regulation, more bureaucrats, more lawsuits and injunctions.

Others are a little more fundamental. I’m with them.

They say that we have to get the federal government out of the economy. Turn off the spigot of federal dollars, the bailouts, the stimuli, the give aways, the government sponsored enterprises, the loans and gifts and grants and special privileges, exemptions and loopholes that attract money to Washington.

YOU’VE GOT TO HAVE A QUORUM

2012-01-10T11:32:00.000-08:00

The recent bru-ha-ha in the Wisconsin legislature reminded all of us of a very fundamental rule that governs all parliamentary bodies.

You just can’t do any business without a quorum.

The stalemate in the Wisconsin Senate was temporary, of course. The Democrats were elected to serve in Madison, Wisconsin, and they couldn’t hole up in Illinois indefinitely.

Still, it was a procedural lesson well learned and visibly demonstrated, and it bears examining in an entirely different context.

OK. So flip the power point to a new slide. Let’s talk about an Article V Convention to propose amendments to the federal constitution. It’s the subject of a big debate.

There are basically two sides to the argument.

On the Pro side, there are many people and quite a few organizations who favor the calling of a convention. Almost all of them have an agenda. They want a convention to propose one or more specific amendments.

On the Con side, there are strident naysayers who insist that there is no such thing as a limited convention. They point out that Article V of the constitution authorizes the convention to propose amendments – in the plural – and therefore neither the states nor the Congress can limit its agenda.

They waive the scary flag of a ‘runaway convention,’ and conjure up all kinds of frightening notions like repealing the Bill of Rights, as though a convention could both propose and ratify a whole new constitution.

Unfortunately, the people on the Pro side of the argument are almost as afraid of the convention as their opponents.

As a result, you have all kinds of competing issue-specific advocates knocking on state legislative doors with their verbatim resolutions in hand calling for a convention for a single purpose and threatening to withdraw the application if anything else gets considered.

Article V requires Congress to call the convention if 2/3 of the states ask for it. Congress, of course, doesn’t want a convention because they fear it might trim their entitlements or limit their terms.

If all the Pro people could get together, there might well be 2/3 of the states demanding a convention. In fact there have been over 700 such petitions sent to Congress over the years. Congress has simply ignored them.

Many legal scholars side with Congress. They say the petitions have to be concurrent and compatible. That is, they must arrive in Washington at about the same time and deal with the same subject.

Of course, there’s nothing in Article V that says they have to be concurrent and compatible, but you know how clever and convincing legal scholars can be. Especially when they are saying what you want to hear.

Frankly, I think the whole debate is much ado about nothing. The constitution requires that 2/3 of the states ask for a convention. Very simply, you can’t have a convention without the participation of at least 34 states. Period.

So very literally, the constitution requires a minimum of 34 states to be represented at the convention. If there are only 33states, there is no quorum. And without a quorum, the convention cannot propose an amendment to the constitution. The only thing a convention can do without a quorum is try to get a quorum.

So here is the resolution that the pro-convention advocates should agree upon:

In the Legislature of the State of ___________, the Senate and the House concurring, BE IT RESOLVED that the Congress of the United States is requested to call a Convention for Proposing Amendments to the Constitution as provided in Article V thereof, the same to be convened in the City of Philadelphia on the second Monday in May, 2013 upon the attendance of a quorum of representatives of at least 34 of the several States.

There can be no “run away” convention. Any time less than 34 states are represented, there is no quorum, and nothing will happen. States that don’t agree with the agenda can simply call their delegates home.

And they don’t even have to hole up in a motel in Illinois.

CHRISTMAS 2011

2011-12-24T08:48:00.000-08:00

She decided that this would be the year of the white Christmas.

Snow on the ground. A chill in the air. A fire in the fireplace. Hot toddies and slow mornings snuggled beneath fleecy comforters.

So here we are in Harbor Springs, Michigan, our cottage clearly visible from the road through the naked hardwoods, a string of white lights surrounding the front door, deer tracks on the back deck, and the eighth hole of the golf course stretching forlornly east under its snowy blanket.

Fala, lala, la.

I was sent to the basement to fetch the crèche. It’s in a box, with a lot of little boxes inside, each one containing a figurine. Mary, Joseph, the infant. Cows, wise men. Maybe a shepherd or two.

I scoured the storage room. Looked in every box I could see. No crèche. I began to panic. Surely it is here someplace. She said it was, and she knows about such things.

I remembered the famous shower episode.

We were spending a couple of days with Dave and Lynn Michael at the place they had rented at Black Diamond golf resort. Dave and I had an early tee time. The girls were still sleeping.

I could not figure out how to get the shower to work.

Now I’m not a complete idiot. I’ve stayed in countless hotels and motels, stayed at the homes of many friends and relatives. I’ve managed to figure out how to route the water through the showerhead instead of the bathtub faucet many, many times.

It’s easy. All you do is pull up on the little lever. Or push down. Or sideways.

Of course, first you have to find the little lever.

Sometimes it’s on the top of the faucet. Sometimes, it’s underneath.

But in this case, I was at a loss to find any little lever. I felt the faucet all over. Top and bottom. No lever. No button. No nothing.

Dave appeared. I told him the problem. I also told him that I didn’t want to wake up my wife. She would, I told him, even though half asleep, simply touch something I had not seen and presto, the water would come out of the showerhead.

Dave agreed that such embarrassment should be avoided, but darned if he could get the shower to work either.

Of course, Polly could, and she did, half asleep and went back to bed.

So I kept looking for the crèche.

Polly could find it, I told myself. She said it is down here. It’s got to be here someplace.

When she called me for lunch, I climbed the stairs in defeat and humiliation. I told her I could not find it.

She said she knew it is down there and I should eat my lunch.

Overcome by pride, I insisted that she tell me exactly where the crèche was, so I could bring it up before eating. She described the storage area, said it was on the second shelf.

Downstairs I went. Determined. My search was limited to a single shelf. The crèche could not elude me.

But it did.

I came back upstairs, defeated, frustrated. Whereupon my dear bride led me downstairs and pointed to the box. Right there on the second shelf.

Growing old is uncomfortable in many ways, not the least of which is ineptitude in the ordinary activities of life.

There is no greater blessing than to be married to a woman who is an expert in the art of living.

Even if sometimes you feel a little foolish.

TAX THE BILLIONAIRES

2011-12-17T20:25:00.000-08:00

Driving along the Dan Ryan on my way out of Chicago today, my eye was drawn to a billboard advertising a local talk radio station.

The big, bold headline read “TAX THE BILLIONAIRES.”

At first, my conservative, capitalist, free enterprise, work ethic, Republican gut growled with disapproval.

They’re at it again, I thought. The class warfare people, trying to divide America. Playing on the cupidity of the masses. The politics of envy. 99 % versus 1%.

But then I had a second thought. As crass as that billboard sounds, it is in fact expressing a policy that I believe makes sound economic sense.

Bear with me here, this is not so unreasonable.

First off, I firmly believe that the 16th amendment was a mistake, and should be repealed.

For those of you who don’t know, the 16th amendment was passed in 1913. It’s the amendment that empowers the federal government to levy income taxes.

The constitution as originally written provides that all federal taxes levied on the American people must be proportional to the population of the states.

Basically, that would only allow a ‘head’ tax, and not a tax that takes account of wealth or income.

The 16th amendment is the only exception to that rule. A tax on billionaires or trillionaires or millionaires would be unconstitutional if it taxes their wealth and not their income.

I would favor repealing the 16th amendment and replacing it with an amendment permitting the federal government to levy a wealth tax.

A wealth tax would be levied not on what you earn, but on what you own. All of the states already have real estate taxes, and some of them have intangibles taxes which are levied upon the value of investments.

Why tax wealth instead of income?

Very simply because income which is earned and spent stimulates the economy. That’s why everyone cheers when the stores report record Christmas spending. The faster money moves around from buyers to sellers, from earners to businesses and back again, the better it is for everyone.

The worst thing anyone can do with money is to hide it under the mattress.

The parable of the talents teaches us about the social obligation of wealth. Matthew 25: 14-30. The servants who put their talents to work were commended by the master. The guy who buried his talent was condemned as wicked and lazy.

The second worst thing you can do with wealth is to buy gold. Gold doesn’t employ anybody, doesn’t make anything, doesn’t stimulate the economy.

The third worst thing to do with money is to buy government bonds. Unless, of course, you think that the government knows best about how to run the economy.

The total wealth of the United States is around 60 trillion dollars. To replace our income tax would require an averge asset tax of about four percent.

A graduated wealth tax would assure that money would be invested in income producing assets as opposed to being gambled on speculative holdings.

It would have to permit and encourage household savings for retirement, education, and rainy days of course, but, if properly graduated, it would be levied on those with the ability to pay and the obligation to invest in the community.

Capitalism is not a system that can be abolished or amended. It is instinctive human behavior. Free enterprise is nothing more than free people making free choices.

There are winners and losers in the marketplace, just as there are in sandlot softball.

The one thing winners can’t do is take their bat and ball and go home.

HOT TUB SEMINAR

2011-12-10T08:53:00.000-08:00

My grandson wants to be an investment banker. A bright young senior at Marquette University, he was here for Thanksgiving dinner and a day of golf with the old judge.

Sitting in the hot tub, we got into a debate about money.

Not his or mine, or even his father’s.

No sir, we got to talking about the national debt, and what can or can’t be done about it.

The premise was a constitutional amendment I advanced in a blog recently:

The treasury of the United States shall issue currency which shall be legal tender for all debts, public and private, in sufficient amount to discharge all obligations of the United States incurred prior to the ratification of this amendment, and, annually thereafter to fund all appropriations of the Congress.

The Congress shall not otherwise have the power to borrow on the credit of the United States.

Joe insists that the plan would be a disaster, would cause hyperinflation, could sound the death knell of the United States as we know it.

I have to confess that’s a possibility, especially if the Congress decides that issuing fiat money is a viable substitute for fiscal integrity.

But if the Representatives and Senators we send to Washington cannot resist the temptation to spend money we don’t have, the federal government is doomed. It will go out of business sooner or later. Better we face up to the crisis and deal with it now, rather than leave it for Joe and his kids.

One thing is for sure: it isn’t getting any better and it’s getting harder to fix every day. Every time the sun goes down, Uncle Sam has borrowed another 4 billion dollars. If we can’t solve a 15 trillion dollar problem, how are our grandchildren supposed to fix a 30 trillion dollar problem?

In the days of the gold standard, there was only so much money because there was only so much gold. The problem with fiat money is that there’s no end to it. At least there’s no end to it unless the law or better yet, the constitution, sets the limit.

Right now, the only limit on our money supply is the decision of the Federal Reserve. Twelve unelected, largely unknown bankers have the financial fate of the nation on their agenda. We have been trusting their judgment for a hundred years, and it doesn’t seem to be working out so well.

Our current money supply is equal to about $7,000 for every American. Our debt burden is over $48,000 for every man, woman and child. Bottom line, there just isn’t enough money to pay off what we owe.

If we expand the money supply to retire the national debt, what would happen?

Wealthy people, big corporations, foreign governments, especially the Chinese, would find themselves with mountains of cash. They buy and hold T bills as a safe place to park their money. Eliminate their parking lot, and they have to invest elsewhere.

There would be no place for them to put their money except in the stock market.

Stock prices would soar. Dividends, as a percentage of stock prices would shrink. Interest rates on corporate and municipal bonds would go down.

Deprived of the safe parking place, money would be forced into riskier investments. Venture capital would become plentiful, as investors look for higher, though riskier returns.

As the market becomes more bullish and volatile, the winners will win less and the losers will lose more. The Occupiers will cheer. Money lost on Wall Street is the quintessential tax on the rich. That’s what the free market does.

My amendment will automatically balance the budget. Since the government won’t be allowed to borrow, it cannot operate in the red. The Tea party won’t be able to complain about government spending. Of course, they may have to start complaining about government printing if and when inflation hits the super market.

But hey, inflation is the free market’s income tax. If we are going to have music, everybody has to pay the fiddler.

DUMPING ON THE FLAG

2011-12-07T22:14:00.000-08:00

My Pal John Runyon sends me this email with a picture of a naked man squatting over an American flag, defecating for the amusement of several dozen onlookers.

It’s another wonderful day of occupying Wall Street, Oakland, San Francisco or Your Town, U.S.A.

Runyon says I ought to write a blog.

What the heck can you say?

I’m sure there are city ordinances against defecating in public places. The taxpayers have ponied up quite a bit of money to provide a sanitary sewer system to protect the public health, for good reason.

So this jerk doesn’t care about the public health. Doesn’t give much of a damn about his fellow citizens or himself, for that matter.

And quite obviously, he doesn’t like the United States of America.

Makes you wonder what he does care about. Why is he doing it? Why is he out there? Why are any of them out there, making a fuss, taunting the police, getting themselves pepper sprayed, camping out and refusing to go away?

What’s it all about, anyway?

I looked it up on Wikipedia, and I read about the founder of the occupy movement.

His name is Kalle Lasn. Born in Estonia in 1942, he migrated to Germany, then to Australia. In the 1960’s he moved to Tokyo, where he started a market research firm. Now he lives in Canada and runs a company known as Adbusters.

Best I can figure out, Adbusters is a non profit corporation, supported in part by Tides Center, a left-leaning clearinghouse for charitable donations, and by contributions from the general public.

It has to get donations, because Adbusters doesn’t do anything that makes money. They publish a magazine which carries no advertising and sells no subscriptions.

So what exactly does Adbusters do?

It describes itself as an “anti consumerist” organization dedicated to “jamming the culture” of western civilization.

Hard to figure out just what that means. The Adbusters logo looks like an American flag, except that the fifty stars are replaced by fifty familiar corporate logos.

Adbusters has done some good. They came up with “Joe Chemo”, whose last name was shortened from Chemotherapy, as a spoof of R. J. Reynolds’ successful cigarette advertising campaign starring “Joe Camel.”

But Lasn has come a long way from getting people to kick the habit.

Perhaps, at seventy years of age, he longs to return to the Woodstock hell raising of his youth.

Whatever. On August 13, 2011, Adbusters ran a centerfold challenge asking readers and followers to gather on Wall Street and protest the wealth and power it represents. The ad got a lot of attention, especially among young people. The date they picked was September 17, celebrated in the United States as Constitution Day.

Lasn says he got the idea from the riots in Egypt. Of course, he didn’t endorse that kind of violence, and he hasn’t openly called for the overthrow of the government.

But still.

Still you have to wonder what it is he expected his readers to do. This is a man who has said, “I have a feeling that right now, this human experiment on planet Earth is hitting the wall.”

He calls himself a ‘creative.’ That’s somebody who designs advertising. “We are the cool-makers and the cool-breakers,” he says. And he insists that ad men, more than any other profession, have the power to change the world.

His book is called, Culture Jam: How to Reverse America’s Suicidal Consumer Binge – and Why We Must.

I can’t wait to read it. Especially the part about how to make the world a better place by depositing human feces on Old Glory.

NIXON SHOCK

2011-11-25T06:37:00.000-08:00

Let’s take a look at some history.

In 1944, 730 delegates from 44 nations met in Bretton Woods New Hampshire and agreed on an international monetary system.

Pretty simple idea. The United States had a lot of gold in Fort Knox and our dollars were pegged at 1/35th of an ounce of gold. Thirty-five dollars an ounce. Not hardly enough to interest Glenn Beck or Gordon Liddy.

The other 43 nations agreed to adopt fixed rates to exchange their money for US dollars.

The system worked pretty well until about 1970. The United States was involved in a prolonged and not very successful war in Viet Nam. Folks around the world began insisting on redeeming their US dollars in gold.

France demanded 191 million in gold. Switzerland redeemed 50 million, then on August 9, 1971 withdrew from the Bretton Woods system.

Congress began to consider devaluing the dollar.

Six days later, on August 15, 1971, President Richard Nixon imposed a ninety day wage and price freeze, a 10% import surcharge, and closed the gold window.

Historians call it the “Nixon Shock.”

Our Yankee dollar no longer represented 1/35th of an ounce of gold. We were officially using fiat money.

“Fiat” is Latin for “let it be.” Our currency is money because we say it is. Sort of like the banker in a game of Monopoly.

My grandson says fiat money doesn’t work because printing money causes inflation. In fact we did experience inflation in the 1970’s. By the time Ronald Reagan and Jimmy Carter squared off in 1980, 13 and 14 percent inflation was the norm.

Enter Ben Bernacke.

The Federal Reserve System was established by the Federal Reserve Act of 1913. It’s a group of regional banks which function as the official bank of the United States. It’s the job of the Fed to prevent inflation and to ward off recession.

Something else the Fed does: it props up the banking system.

Nothing new there. Back in1907 we had a severe recession. People lost faith in the banks and lined up to take their money out. J. Pierpoint Morgan did a one man bail out, deciding which firms were too big to fail and saving the New York stock market.

Shortly after the panic of 1907, Congress formed a National Monetary Commission, chaired by Senator Nelson W. Aldrich of Rhode Island. Aldrich invited a group of bankers to a ‘duck hunt’ on Jekyll Island. They came up with a plan for a central national banking system.

Three years later the Fed was born.

Most Americans don’t know much about the Fed. It’s all a kind of mysterious economic hokus pokus. Seven bankers who are appointed by the President of the United States and paid $179,000 a year to decide what interest rate to charge the banks.

And some other things. The Fed controls our money supply. They don’t have to print dollar bills, or fives, tens and hundreds. No sir, they just write checks. They write checks that are drawn on the Federal Reserve.

That’s right. It’s a check that tells itself to pay money to somebody. If they want to put more money in circulation, they buy government bonds with those checks. The people they buy the bonds from deposit the checks in their banks and their banks deposit the money with the Fed.

If you or I did that, we’d be arrested for check kiting.

So what’s the big deal about owing trillions to the Chinese? When their loans come due, the Fed can just write them a check.

And what’s the big deal about deficit spending in Washington? The Fed can write checks and never be overdrawn.

Free food, clothing, shelter, health care, education? No problem. The Fed can write a check.

Ain’t Utopia wonderful? All we have to do is pitch a tent on Wall Street and elect Michael Moore President of the United States.

SOLVING THE CRISIS

2011-11-20T18:04:00.000-08:00

The national debt has now passed the 15 trillion mark. There are lots of web sites which attempt to help us understand how big that obligation is. Pictures of a football field covered with hundred dollar bills stacked to sky scraper height, for example.

You get the idea. It’s mind boggling.

I’ve never been a big fan of fiat money. Seems to me that money ought to have some real value that people can count on when doing business with each other.

Still, the free market dictates otherwise.

Money, it turns out, is just another commodity. Its value goes up and down according to demand and supply. Sort of like speed and distance and mass and all those other things that Albert Einstein figured out. It’s all relative.

So money is just a chit. A marker. An I.O.U. Its value depends on the muscle of the guy who issued it.

The United States of America, ever since the middle of the last century, has maintained a nuclear arsenal. It has also maintained a very high tech, very sophisticated military establishment. We are often called the most powerful nation on earth. We think we are, and so does most of the rest of the world.

Because we, as a nation, have the most muscle, our markers, our IOUs, if you will, are regarded as the most valuable. U.S. currency is recognized and used all around the world. Our money is what the bankers call the reserve currency.

How much money have we issued? Here’s what Wikipedia says:

As of November 17, 2011 the Federal Reserve reported that the U.S. dollar monetary base is $2,150,000,000,000. This is an increase of 28% in 2 years. The monetary base is only one component of money supply, however. M2, the broadest measure of money supply, has increased from approximately $8.48 trillion to $9.61 trillion from November 2009 to October 2011, the latest month-data available. This is a 2-year increase in U.S. M2 of approximately 12.9%.

That’s a lot of dough, and it seems to be increasing very rapidly.

It’s pretty obvious that the increase in money supply is fueled by government borrowing and deficit spending.

Which brings me to propose this simple solution. A constitutional amendment which would say something like this:

The treasury of the United States shall issue currency which shall be legal tender for all debts, public and private, in sufficient amount to discharge all obligations of the United States incurred prior to the ratification of this amendment, and, annually thereafter to fund all appropriations of the Congress.

The Congress shall not otherwise have the power to borrow on the credit of the United States.

At the same time, the treasury should be charged with the obligation of devising forms of currency which are incapable of being counterfeited. Fiat money can have value only if it is real fiat money. Electronic technology should be employed to assure that when the Treasury issues currency it is the real thing.

No doubt this proposal will have the immediate, visceral opposition of many conservatives. The obvious argument against it will be that Congress will spend without limit to satisfy every political demand that comes from the left, while reducing taxes to placate the right.

So what’s new? Isn’t that what they are doing now?

At least with fiat money, the United States would not have to pay interest on a 15 trillion dollar debt. That would save us about half a trillion every year.

In any case, the Congress can’t repeal the law of supply and demand. If it cannot maintain a rational balance between spending and taxation, the good old yankee dollar will melt.

Inflation is the most regressive form of taxation. It shrinks savings, impairs investments, reduces wages. It affects everybody. The 99 percent. The one percent.

And camping out in front of city hall isn’t going to change that.

SEXUAL SCHIZOPHRENIA

2011-11-20T17:54:00.000-08:00

Almost nobody I know has ever heard of NAMBLA. It’s an acronym that stands for North American Man Boy Love Association.

Founded in 1978, NAMBLA describes itself as a support group for pedophiles.

Its web site lists a number of well known people who are supposed to have had sexual relations with young boys.

Replete with links to references in art, music, poetry, and history, it presents arguments in favor of consensual sex between men and boys and invites persons of similar views to join the movement.

Consensual. That’s the key word. When is a boy old enough to be a real, active homosexual?

Hey, our modern public schools are featuring sex education for middle school kids – age 10 through 14. They learn about anal sex and oral sex. They practice putting condoms on bananas, and are told that one’s sexual orientation is entirely a matter of personal choice.

Sexually active teen agers are apparently the norm. The dominant American culture makes no judgment about sex. It has no moral dimension. It is neither right nor wrong. Just a matter of personal choice.

Thanks to the radical cultural departure of our United States Supreme Court in the case of Lawrence v Texas, consensual sex between consenting adults is now a constitutionally protected activity, at least when done in private.

Now we have teen agers and even sub teens, engaging in sexual
experimentation with the not so tacit approval of the educational system.

By what logic do we rise up in righteous indignation when the activity is between adults and children?

The logic is that the kids are not really consenting. Approached by an authority figure; a teacher, a boy scout leader, a priest or a coach, a child is unlikely to protest.

Indeed, he may assume that the initiative is educational. Here is a gown up who teaches him about other things - arithmetic, grammar, religion, sports –demonstrating the bodily function of sex.

The public goes ballistic over Jerry Sandusky. The same media voices that lionize homosexual activists, that cluck with criticism about right wing condemnation of homosexual conduct, are the first to crucify pedophilic priests and coaches.

In my view, they have a problem. If right and wrong is nothing more than a function of the age of consent; if sexual activity has no more moral significance than push ups, what is the logic of condemning pedophiles?

If teaching a boy how to engage in sodomy or felatio has no greater moral significance than showing him how to brush his teeth, how is it to be condemned or criminalized?

NAMBLA may well be a congregation of sickos, but given the popular consensus that sex has no moral dimension, nor rightness or wrongness about it, it’s hard to fault their logic.

What is missing in the whole Penn State mess is the voice of reason, of history, of the immutable laws of nature.

Who steps forward to teach children that sex is the most powerful, significant, sacred function of the human body?

Who tells them that the function of sex is to procreate human existence on this planet? That it carries serious, moral, and personal responsibilities? That every person’s sexual attitudes and practices define them as human beings and the attitudes and practices of people in a community define their very civilization?

We live in a declining hedonistic society. Adultery and fornication are celebrated in our entertainment media. Abortion provides an inhumane escape from parental responsibility. Sexual perversion is glorified as an honorable alternative lifestyle.

Poets, writers, actors and musicians drive the cultural bus. They create the norm of political and cultural correctness.

Fifty years ago, the idea that an organization of homosexuals would have standing and credibility in the chambers of the United Nations would have been unthinkable. It isn’t any more.

I wonder how long it will take for NAMBLA to get the folks in Hollywood to wear lavender or some other color ribbons in support of pedophilia?

TOO BIG TO FAIL, TOO GOOD TO SIN

2011-11-11T12:08:00.000-08:00

It’s 1998.

Hey coach, did you know that your defensive coordinator loves little boys?

Yeah. Isn’t it wonderful what Jerry does for the kids. You know, he started The Second Mile. They teach Commitment, Responsibility, Opportunity, Character, Potential, Positive Self Image.

No, Coach. I mean he really LOVES kids.

You can say that again. He buys gifts for them, takes them to football games, lets them sleep at his house …

No, no. That’s not it. He really loves the kids physically.

I know. He hugs them. Wrestles with them. Really loves to play with them.

Coach, your still not getting it. Jerry loves the kids sexually.

Jerry? Sexually? What do you mean? What are you talking about?

I’m talking about sodomy. Pedophilia. I’m saying that he is a homosexual
predator.

That’s terrible. I better call the Athletic Director.

In 1998 a boy involved with The Second Mile comes home with his hair wet.
His mother asks him why. He says that he took a shower with Coach Sandusky.

His mother promptly calls the police. Two officers come to the house, one a Penn State campus police officer, one from the community.

They tell her to call Sandusky on the phone. She does, and they listen on the extension. The mother asks Sandusky if he showered with her son. He admits it. She reprimands him, tells him he is never to do it again. He promises not to. She says he should promise never to shower with any little boys. He refuses, then asks her to forgive his indiscretion, says he feels bad about it, wishes he was dead.

The police officers report the incident to their superiors both at the university and the community.

I suggest that a report like that would not have been ignored. The head of campus security would tell the President. The President would talk to the Athletic Director. They would sit down with the head coach. They would all agree.

Can’t have pedophilia at the Pennsylvania State University.

Sandusky’s got to go.

It won’t be easy. Somebody’s got to tell Jerry. And it’s pretty obvious that somebody did.

Because about that time Jerry Sandusky started putting out feelers for coaching jobs at other universities. Nothing materialized. Maryland looked very interested, then suddenly hired somebody else.

Then, in 1999, at 55 years of age, without another coaching job to go to, Sandusky announces his retirement from Penn State University. That’s pretty young to retire. But he can manage. He gets $57,000 a year from The Second Mile.

The University gives Sandusky a huge public sendoff and an agreeable separation package. He still has an office. Still can use the gym and showers. Still gets tickets and other perks.

Three years go by. Then in 2002 Mike McQueary sees Sandusky sodomizing a ten year old boy in the shower. He goes home and tells his father, a good friend of Sandusky. The father says, tell Paterno. Paterno tells the Athletic Director.

Once again, the news goes up the line. Everybody knows. What to do? Tell Sandusky he can’t bring kids to the University any more. Tell The Second Mile that they have a problem with Jerry Sandusky.

After all, we can’t have pedophilia on the campus of Pennsylvania State University.

Not at Penn State. Penn State is squeaky clean. Penn State values character, responsibility, commitment. It supports charities like The Second Mile, where kids from broken homes can learn about life, develop a positive self-image and have positive interactions with adult role models.

And get some hands-on sex education from a sicko who is too good to sin.

THE BIGGER THEY ARE...

2011-11-10T20:55:00.000-08:00

It’s right there on the Internet. A newspaper story back in 1999:

PHILADELPHIA. Who will take in the strays?

Who'll tend to the forgotten? Who will open their door to the throwaways, the runaways, the ones squarely in harm's way?

Those are the questions we'd rather not hear, aren't they? The ones that make us avert our eyes, squirm in our seats, wish desperately we were somewhere else.

For almost 20 years now, whenever a hand has been raised to volunteer in answer to those unsettling questions, it has belonged to Jerry Sandusky and his wife, Dottie.

They have adopted and raised six children. They started and nurtured The Second Mile, which began as a foster home and has grown to eight different programs that provide for more than 100,000 children who share this commonality: they are considered to be at risk, which is a chilling term that means their souls will drown if someone doesn't throw them a lifeline.

Jerry Sandusky, by the way, is a football coach.

Back in 1977, coach Sandusky founded the organization known as The Second Mile. To say that it has been a success would be a gross understatement. It has grown to be a multimillion dollar charity whose boards of directors read like a roster of who’s who in Pennsylvania business and society.

Literally thousands of boys and girls have experienced The Second Mile programs, and the positive impact of the program on their lives has been demonstrated and documented.

Sandusky chose the name of his charity from the Bible. Matthew 5:41-42 And whosoever shall compel thee to go a mile, go with him twain.

That’s where we get our phrase “going the extra mile.” Service above and beyond the call of duty.

I looked up the Second Mile on the Internet earlier today. Impressive site. Among the celebrity board members: Arnold Palmer and Cal Ripken Jr.

Then I looked it up again a few hours later. It appears to have been
completely redesigned. Palmer and Ripken are gone.

The home page features a letter from John Raykovitz, CEO of Second Mile.
In part, it reads:

As The Second Mile’s CEO Jack Raykovitz testified to the Grand Jury, he was informed in 2002 by Pennsylvania State University Athletic Director Tim Curley that an individual had reported to Mr. Curley that he was uncomfortable about seeing Jerry Sandusky in the locker room shower with a youth. Mr. Curley also shared that the information had been internally reviewed and that there was no finding of wrongdoing. At no time was The Second Mile made aware of the very serious allegations contained in the Grand Jury report.

Subsequently, in November 2008, Mr. Sandusky informed The Second Mile that he had learned he was being investigated as a result of allegations made against him by an adolescent male in Clinton County, PA. Although he maintained there was no truth to the claims, we are an organization committed first and foremost to the safety and well-being of the children we serve. Consistent with that commitment and with The Second Mile policy, we immediately made the decision to separate him from all of our program activities involving children. Thus, from 2008 to present, Mr. Sandusky has had no involvement with Second Mile programs involving children.

One has to wonder why Raykovitz thought Curley was telling him about Sandusky’s being in a shower with a youth if indeed there was ‘no wrongdoing.’

Did Raykovitz think Curley was just gossiping about Sandusky? C’mon.

So Sandusky continues to be involved with Second Mile children for six more years until he finally admits being under investigation in 2008. And then what? What does The Second Mile do?

It tells Sandusky he can’t play with the kids anymore. But he stays on the staff until he resigns in 2010.

Pennsylvania Governor Tom Corbett wants The Second Mile to be investigated.

Who knows what other horror stories will surface. The bigger they are, the harder they fall.

BUCK THE SYSTEM

2011-11-05T17:51:00.000-07:00

Back in 2005, Congress passed the Presidential $1 Coin Act. It requires the U.S. Mint to crank out nearly two million shiney one dollar coins every day.

So now the Mint has more than a billion of them. They’re building a new vault in Dallas – at a cost of $650,000 – just to store them.

Not very popular, these brass bucks. I have a friend who uses them to tip the bag boys at the golf club. I tried it myself. They look at you like you just stiffed them.

An editorial in USA Today says we ought to use the coins. Paper dollars last about 22 months. Brass bucks are still in circulation after 32 years. And they can be recycled. Old paper dollars get ground up and used for landfill.

The bucks cost about 30 cents to make. That works out to over 300 percent profit on very buck the Mint can sell. It won’t make a huge dent in a 3 trillion dollar deficit, but it would help a little.

I stumbled onto a blog the other day where some guys were talking about how to make easy money buying dollar coins. It seems that the Mint is so eager to put them in circulation that they ship them to buyers without charging freight.

And you can buy them with your credit card.

So here’s how it works: you buy $1,000 worth of coins from the Mint and charge them on your Visa card. That buys you $10 in cash awards. The coins arrive in a few days and you immediately deposit them in your bank account. You won’t have to pay Visa for another few weeks, so the bank pays you interest on the money.

Only in America.

I was still thinking about the brass bucks when I browsed over to see what the Occupy Wall Street people were doing. Looks to me like they are running out of gas. Apparently the New York assembly has degenerated into a free for all in which fun seeking teen agers mingle with street derelicts and radicals of all sorts tout inconsistent messages and demands.

Too bad.

There certainly is enough mischief on Wall Street to warrant attention. And whether or not the ratio is truly 99 to 1, it is pretty obvious that some of the top financial decision makers have screwed up and the vast majority of common folk are taking the hit.

In Orlando and elsewhere, the Occupy people are talking about taking all their money out of the banks and putting it into credit unions. Perhaps credit union managers as a class of people are more civic minded than bankers.

Still, many credit unions have gotten into the mergers and acquisitions craze that has produced huge banking conglomerates that are ‘too big to fail.’

And credit unions have the same kind of federal deposit insurance as the banks. So the bottom line is that your money, whether in a bank or a credit union, is as safe as the other fifteen trillion dollars Uncle Sam owes.

I seriously doubt that the current crop of demonstrators will have any impact on the ravages of human avarice. Wall Street will still be Wall Street in 2013.

But the frustration and outcry of the occupiers and the tea party can make a difference. If one step by one man on the moon can signal a giant leap for mankind, so can the individual actions of individual citizens affect the nation’s economy.

So what if you and I, and everyone we can email began using brass bucks instead of dollar bills?

What if each one of us started taking George Washington to the bank?
Turning in all our George Washingtons and using brass bucks instead.

Our constitution authorizes – indeed requires - Congress to coin money. Says nothing about printing bank notes for the Federal Reserve.

The dollar bill in your wallet is nothing more than a note from the Fed.

At least the brass buck is real money.

PERSEVERANCE

2011-10-27T08:30:00.000-07:00

Some of you have seen me do it.

I plunk my air guitar, summon my best country western accent and sing the song I wrote. It goes like this:

I was born in Tennessee
In the Veerans family
Percy was my daddy’s name
And they christened me the same
Percy Veerans!
Percy Veerans!
Percy Veerans is my name
When the rest have given up
I’ll still be in the game.

There was a curio shop a block or so from the University of Detroit Law School. In the window, a plaque displayed a chronicle of Abraham Lincoln’s career. A tale of failure and frustration that culminated in the Presidency of the United States.

I passed that shop every day on my way to the street car. And I read the plaque. It was the most enduring lesson I learned in law school.

And so, I have persevered, often against wise counsel. I lost five elections before winning a seat on the Common Pleas Court of Detroit. I spent decades battling the American Bar Association to establish the Thomas Cooley Law School.

As the years have piled up and the testosterone diminished, I have learned to resign myself to the impossible.

But still…

Still, there is the flickering flame way down deep that says, “It’s the right thing. It can be done. It must be done.”

Two years ago, I launched a website called ConventionUSA. My idea was to provide a place where ordinary citizens, the good folks who save their money, pay their taxes, register and vote, could come together and talk about the future of our country.

Maybe even do something constructive.

Anybody who doesn’t think there’s a lot to talk about must be comatose.

The demonstrators who have camped out on Wall Street have inspired flash mobs in other cities.

Yesterday it was Oakland, California. We were treated to pictures of riot-geared police trying to stem an attack on city hall. It wasn’t London or Madrid, Egypt or Syria. It was right here in the good old U.S. of A.

Social networking on the Internet has gone bananas. Over 800,000,000 people on Facebook? That’s nearly three times the population of the United States, and almost nine percent of the population of planet earth!

Calls to action go viral in seconds. We are literally living in a tower of babel.

But the miracle of the silicone chip can work both ways.

The people out on the streets do not represent 99% of the citizens of our nation. The majority is still as silent as it was in 1972 when Nixon coined the phrase.

But things are different today. Today we have the Internet. We can talk to each other. We can speak up without ever leaving home. We can make ourselves heard without bull horns.

My vision for Convention USA is that it will become a permanent institution. Not just another think-tank or advocacy site for the Right or the Left, but an assembly open to all men and women of goodwill and civility, who want to protect and defend our constitution and prosper out beloved Republic.

Is that such a bad idea?

Is that something beyond the realm of possibility?

Is it an undertaking that can only succeed with a huge investment of money and vast array of hired hands?

Or is it a dream that can come true with commitment and perseverance?

I’m 82. I’ll keep at it a while longer.

DICTATORSHIP IN AMERICA

2011-10-26T10:19:00.000-07:00

Some days I wake up in the morning with a sudden realization. This is one of those days.

I got up, went right to my computer and jotted down four subjects to write about.
• 180
• 11%
• FOIA
• Can’t wait

Item number one is a thirty minute video I found on the Internet yesterday. You can view it at www.180movie.com.

It is the most moving and frightening thing I have seen in a long time. Hitler’s Third Reich. Marching, chanting mobs. Horrible scenes of the Holocaust.

And then the interviews. Young people who never heard of Adolph Hitler. Didn’t know who he was. Didn’t recognize the name.

A tattooed neo-Nazi nut case who denied that there ever was a Holocaust. Then a Jew-hating racist who insisted that the pogrom wasn’t so bad. And anyway, they deserved it.

The second item is the Congress of the United States. It now enjoys the worst public approval rate in the history of our country. Eleven percent.

That means eighty-nine out of every one hundred American disapprove of the body of elected officials who are supposed to represent the people of the United States.

The people of this country have lost confidence in their elected representatives. They have lost confidence in our constitutionally mandated republican form of government.

Members of Congress are seen as crooks, career politicians, greedy, self- serving liars who have sold out to multi national corporate lobbyists and who no longer represent or serve the people.

First the Tea Party. Then the Coffee Party. Then Occupy Wall Street and Main Street. Direct democracy is the byword. Forget electing representatives to govern us. We want to govern ourselves.

Benjamin Franklin said the United States is a Republic “if you can keep it.” Do we want to keep it?

Number three. FOIA is the Freedom of Information Act. It empowers the American people to have access to government records. At least that’s what the law says. Now the Attorney General issues ‘guidelines’ telling government agencies that they can lie to the courts about records they don’t want to disclose.

‘Guidelines’ that repeal laws enacted by the Congress?

Who needs Congress anyway? The Code of Federal Regulations which contains all the rules made by government agencies boasts 50 titles, nearly 200,000 pages and 25 feet of shelf space. In addition, the President issues Executive Orders which have the force of law. Barack Obama has issued 95 of them so far.

That brings me to number four, “Can’t Wait.”

This is the President’s new mantra. He can’t wait for the Congress to do what he wants them to do. So he issues orders.

Stroke of the pen. That’s how laws get made by dictators. Hitler did it in the 1930’s and the crowd cheered.

President Obama tells the American people they can’t wait for jobs and foreclosure relief. And he’s got that right. The American people just can’t wait. In a culture of instant gratification, we want what we want and we want it now.

Just do it. Make it happen. Or as a friend of mine said the other day, “What America needs is a benign dictator.”

That’s an oxymoron. Dictators aren’t benign.

The primitive cycle of human governance is playing out in the Middle East. Dictatorship. Revolution. Mob rule. Martial Law. Dictatorship. Revolution, etc. etc.

It can’t happen here. Or can it?

FIXING THE SENATE

2011-10-21T20:38:00.000-07:00

Article V of the United States Constitution, which tells us how it can be amended, ends with these words: “…no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

The constitution is full of compromises. Small states versus big states. Commercial states versus farming states. Slave states against free states.

Some delegates, I suppose, were afraid that their state might actually be ousted from the union. Or perhaps downgraded to second class status.

The bicameral legislature was itself the grandest compromise of all. One house reflecting population, the other protecting the sovereignty of every state, even the smallest.

I’ve heard it said that the United States Senate is the most prestigious debating society in the world.

Maybe so. But I wonder sometimes if its prestige doesn’t get in the way of its primary responsibility. That is to represent the sovereign states of the American union. In fact, the Senate calls itself “the living symbol of our union of states."

Senators are elected for six year terms. Every two years, a third of them are up for election. That means two thirds of them are not. At every national election between 32 and 35 Senators are on the ballot. At least sixty five of them are not.

The purpose of staggering senatorial terms is sensible. The Founders wanted it to be a stable body of statesmen with institutional memory who would tend to soften any rash change in public policy that might come from the House of Representatives.

Fair enough. And leavening the Senate with a third of its members reflecting the current mood of the voters is another good example of the compromises made in Philadelphia.

But I think if falls a bit short. The Senate, in effect, takes the temperature of only a two thirds of the nation every two years. The voters in the other 16 or 17 states may be up in arms and ready to throw the rascals out, but since there is no senator on the ballot in those states, they have no place to vent their views.

Something like one hundred million Americans are disenfranchised every two years!

The solution in my view is simple. If there were one hundred fifty instead of one hundred Senators, one from each state would face the voters every two years. The turnover would still be limited to a third of the body, so continuity would be assured, but the changing mood of the nation would be better reflected in that august assembly.

And with three, rather than two Senators from each state one other important thing could happen.

The United States Senate could vote by states, rather than by individual Senators. With three Senators from each state, they could be required to agree on the vote to be cast for their state.

At present, the Democrats control 17 state delegations in the Senate and the Republicans have 15. Eighteen states have split representation.

The result? A majority of the Senators never means a majority of the states!

You cannot count 51 votes in the Senate without at least half of your votes coming from Senators elected in states with equally divided delegations.

Another, perhaps less obvious benefit is this: senatorial arrogance would be diminished. United States Senators perceive themselves to be pretty important men and women. They hold up judicial appointments, they threaten filibusters, they kill legislation which may have passed the House by a wide majority.

Adding fifty Senators would dilute their prerogatives. Instead of one Senator stymying legislative progress, it would take at least two out of three from a state to stall the wheels of progress.

The shrinking of senatorial egos would be a blessing to the nation.

Of course, just adding bodies to the chamber is not enough. There needs to be some outside discipline imposed to prevent some of the obstructionist rules under which the senate operates.

A parliamentary body is a deliberative assembly. It is intended to afford rational debate, discussion and compromise. The sight of a lone Senator delivering an impassioned speech to an empty chamber is the height of embarrassment to our system of republican government.

You can see the British House of Commons on the telly. It may be a bit unruly, but they are all present, accounted for, and obviously paying attention.

Our Senate could use more face time.

MONEY AND POLITICS

2011-10-21T05:50:00.000-07:00

The folks milling around Wall Street are now talking about a national assembly in Philadelphia on July 4th.

They want 870 people – half men and half women – to gather there and draw up a list of grievances to be presented to the Congress, the President and the Supreme Court.

The 870 delegates, it seems, are to be chosen at mass meetings in each congressional district.

So in politics, as in war, the ultimate weapon is boots on the ground.

But boots cost money. Mass meetings have to be organized. And organizers can be hired.

The chicken and egg puzzle of politics: which comes first, the people or the money?

The Wall Street demonstrators seem to have spawned a cadre of anonymous leaders who put up their websites and presume to speak for the masses.

They have drawn up a list of suggested grievances, which will affect the public impression of what their national assembly might do. Candidly, it looked to me to be a Blue State platform, replete with federal spending programs and environmental concerns.

One example: they would outlaw all campaign contributions for federal offices. Presumably that would include individuals, corporations, committees and political parties.

They want all campaigns financed by the federal government. Bad idea. REAL bad idea. If the goal is to entrench career politicians in office, there’s no better way to do it than to let the incumbents decide who gets the campaign money and how much they get.

I don’t know anybody, liberal or conservative, who approves of the way money influences our national politics today. The unholy alliance between K Street lobbyists, corporate cronies and members of Congress as detailed in Professor Larry Lessig’s book, Republic, Lost, is the subject of all kinds of books, blogs and banter on the Internet.

Here’s my take: America has gotten too big for the Capital Building in Washington D.C.

Congress decided to cap the House of Representatives at 435 people in 1913.
We were a nation of 97,225,000 in 1913. Today we are over 312,000,000. Congressional districts average 700,000 constituents.

Bringing a message to 700,000 constituents cost money. Lots of money. Television. Postage. Staff. A campaign for Congress is a big, expensive operation.

And, obviously, a campaign for the Senate is even bigger. And more expensive.

The Founding Fathers set the number of people in a congressional district at 30,000. They could only see down the road as far as 50,000. Maybe that’s where it should have stopped. In a republic of 300 million people, having six thousand representatives doesn’t sound like too much democracy.

Candidates in small districts can go door to door. They can meet their constituents, see them, listen to them, speak to them and speak for them.

The six thousand wouldn’t have to go to Washington. In the 21st century they can assemble on the Internet. The can debate on the Internet. They can vote on the Internet. No big salaries, offices or staffs.

And if Wikipedia doesn’t have as many books as the Library of Congress, at least it’s easier to use.

Much of what Americans don’t like about our government boils down to the culture inside the beltway. Career politicians. A ruling class of elites who talk only to each other. An incomprehensible mumbo jumbo of alphabet soup. Abbreviations and acronyms that separate the insiders from the rest of the people.

Keeping Congress members at home would go a long way toward keeping our government responsive to the voters.

And it’s a lot harder to lobby 6,000 spread all over the country than to buy off 435 in one city.

TRAGEDY AND RAMPAGE

2011-10-17T21:10:00.000-07:00

Two news items crossing the screen today epitomize the culture war in America.

Item number one: Jamie Hubley, a gay 15-year-old commits suicide, leaving blogs on the Internet which chronicle his depression and pain.

Item number two: A Chicago Christian school is vandalized for hosting a pro-family event.

Hubley’s schoolmates plan a memorial performance in his honor. He is remembered as a happy kid, always smiling and giving everybody hugs in the halls.

His blogs paint a different picture. Peppered with F bombs, they reveal a troubled soul who indulged in self-mutilation and hated being the only homosexual in his school.

He expressed love for his parents. Didn’t blame them for his depression. But anti-depressants and counseling didn’t help.

In his final blog, entitled “You can’t break when you’re already broken,” he calls himself ‘a casualty of love.’

Raging teen age hormones, blotting out the call of reason, blotting out concern for parents, blotting out everything but self-loathing and despair.

Pathetic? Certainly. Teen-age suicide is always a tragedy. But the near epidemic of it among homosexuals should hoist a warning flag.

And it does. But the flag gives a mixed message. Some say the message is that universal acceptance and approval of homosexual conduct is needed so that the Jamie Hubleys of the world will not be lonely.

And some say that homosexual conduct is irrational and should be discouraged.

That’s the gist of the message being broadcast by Americans for Truth About Homosexuality, which sponsored a banquet and lecture at Christian Liberty Academy in Arlington Heights, Illinois two days ago.

When the faculty and staff arrived on the morning of October 15, they found a number of windows and doors shattered with bricks. The vandals were not exactly shy. One brick carried a note which read, “This is just a sample of what we will do if you don’t shut down Scott Lively and AFTAH.”

Later in the day, an anonymous posting on the Internet boasted of causing the vandalism to protest the event, accusing Americans for Truth About Homosexuality of being a ‘hate group’ and accusing Lively, who was to be given an award, of founding another ‘hate group’ called Watchmen on the Walls.

An activist organization called the Gay Liberation Network tried to persuade the academy to call off the event, but has taken no responsibility for the damage.

Peter LaBarbera, founder and president of Americans for Truth About Homosexuality, characterized the attack as a ‘hate crime’ against people who espouse Christian values. “If this would have occurred at a gay church, there would have been a public outcry,” he said.

And so it goes.

Eight years ago, in the case of Lawrence v Texas, the Supreme Court of the United States struck down state laws against sodomy. It was a classic example of judicial legislation.

One of the problems with judges making laws is that they tend to get ahead of the curve. Six black robed geniuses in Washington are not competent to declare what is culturally acceptable or unacceptable.

To overturn centuries of human experience and attitude by a 6 to 3 vote is, to say the least, a rather expansive notion of the judicial prerogative.

Did they really expect to silence Mr. LaBarbera with a stroke of the pen?

Or create a welcoming freshman class for Jamie Hubley with their sophistic theories about what the 1789 Constitution ought to have intended?

I suppose there aren’t a lot of folks who would blame Jamie’s suicide or the Christian Liberty Academy vandalism on Justices Kennedy, Stevens, Breyer, Ginsburg, Souter and O’Connor.

But I do.

The Supreme Court never takes a case they don’t want to hear. They should have left Texas law and Texas culture to the people of Texas.

EVERYTHING FOR EVERYBODY

2011-10-15T23:10:00.000-07:00

Just returned from the nation’s capital, where I attended an event at the Heritage Foundation.

Heritage Foundation is a conservative think tank. Very prestigious.

On Tuesday, there was panel discussion with the imposing title, THE CONSTITUTION AND THE COMMON DEFENSE: Who Ensures America’s National Security?

Three heavy hitters led the panel, all former Attorneys General of the United States; Ed Meese, John Ashcroft and Mike Mukasey.

It didn’t take long into the question period before the issue of the drone bombing of Anwar al-Awlaki was raised.

Ashcroft was pretty direct. The President is sworn to protect and defend the nation, said he, and that meant doing whatever was necessary to defend the nation. Successfully, he added.

Neither of the other speakers took issue with that idea. As far as Awlaki is concerned, they all seemed to think that the main reason why he was killed was the same reason Osama Ben Laden was dispatched. The President didn’t want them at Guantanamo.

All of the speakers agreed that the courts have gone too far in trying to referee the war on terror. Apparently, the military now has lawyers in the trenches advising on tactics. Not a very efficient way to win a war.

That said, I was intrigued by a comment made by John Ashcroft at the private luncheon which followed the panel. He confessed to being at least ambivalent about a hypothetic case in which the CIA might take out someone like Awlaki in a Denver condo or an Arby’s in Atlanta.

I think too often we lawyers, and indeed the public at large, assume that only the courts can enforce the constitution.

Ed Meese said it well when he observed that, in the final analysis, the constitution belongs to the people and can be enforced by the people.

Every Congressman and Senator, indeed every elected official in the United States, and every soldier, sailor, marine and airman takes an oath to support and defend the Constitution.

If the President were to authorize the military or the CIA to knock off every suspected terrorist sympathizer with neither writ nor warrant, he should expect to be summarily condemned by the public and impeached by the Congress.

The Awlaki killing was apparently not an isolated event. Just today more American drones landed in Yemen, killing Awlaki’s 21 year old son and eight others suspected of being al-Qaida operatives.

This while 300,000 people demonstrated in Sanaa, the capital of Yemen, demanding the ouster of 31 year President Ali Abdullah Saleh. For their insolence, eighteen protesters were shot to death in the streets.

Apparently what we are doing in Yemen is pretty much what we are doing all over the Middle East. We want to see the long time autocratic leaders ousted, but not by Islamic radicals. We want to build modern democracies in the sand, and turn Bedouin tribal sheiks into precinct captains.

That’s a pretty big finale to the 19th century notion of Manifest Destiny.

And it’s damned dicey.

How, indeed do you distinguish between the radical terrorist revolutionaries and the benign, concerned citizen-demonstrators when they are all mixed together in the park?

Here at home, the 99ers have called for world-wide demonstrations. It looks like they are getting their wish. They’re building tents in Minnesota, burning cars in Rome, raising hell in Madrid.

I went on their web site to see just what it is that they want. One fellow summed it up pretty well. His placard read:

EVERYTHING FOR EVERYBODY.

Like life, liberty and the pursuit of happiness?

THE TENTH COMMANDMENT

2011-10-10T11:53:00.000-07:00

The folks who have gathered on Wall Street these last few weeks describe themselves as “The 99 Percent”.

They have picked up on President Obama’s repeated insistence that the wealthiest one percent of Americans do not pay their fair share of the taxes.

Other than Susan Serandon and Michael Moore, the crowd seems to be largely made up of students and the unemployed. If they do have jobs, they are taking a lot of time off to demonstrate.

When the Tea Party folks took to the streets, I had a pretty good idea of what it was they were complaining about. Their grievance was the massive federal debt and the continuing federal deficit.

It’s hard to get a handle on the 99ers' complaint. It’s pretty clear that they don’t like rich people. With some exceptions.

Presumably they like movie stars, rock singers, basketball players and philanthropists, especially those whose generosity is directed toward environmental causes and endangered animal species other than homo sapiens.

But they sure don’t like stockbrokers, bankers, and other corporate executives.

Makes you sort of wonder what would change their chanting to cheering.
I suspect that if someone came out on the steps of the New York Stock Exchange tomorrow afternoon about 4 o’clock and announced that the Dow Jones Industrial Average had tanked and lost 98% of its value, a mighty cheer would rise from the milling multitude.

Good. The rich people have lost all their riches. Now we can all go home and live happily ever after.

I don’t think so.

Don’t get me wrong, here. I think there are plenty of good reasons for Americans to be concerned, indeed to join forces and demonstrate. The Tea Party, the Coffee Party, the 99ers and their friends are all pretty fed up with the mess in Washington.

Nobody likes the unholy alliance between well-heeled lobbyists and members of Congress who crawl up K Street begging for bucks.

Making a public fuss about it might just encourage some new leaders to step up and do something.

But I do worry about people taking to the streets for no better purpose than to express unbridled envy of rich people.

The tenth commandment teaches us not to covet the wealth of others. And anyway, who decides how rich is too rich? The President speaks glibly of ‘millionaires and billionaires” as though they both enjoy the same status, even though the “B’s” are a thousand times richer than the “M’s.”

I suppose it makes no difference to a factory worker, a store clerk or a college student. All they know is that however you define it, they ain’t it.

A demonstration without a defined purpose is very like a mob. Without a platform or a plan, it can easily begin to focus on people.

In Egypt and Lybia, Yemen and Syria political demonstrations have morphed into revolutions. Placards become guns. Shouting and shoving turns into killing.

It can’t happen here, you say? Guess again. Remember Newark and Watts and Detroit in the 1960’s. Remember Kent State.

On August 20, 1786, Louis XVI was told that the royal treasury was insolvent. Over the next fourteen years, the government of France came apart at the seams. The guillotine became the symbol of popular government. The Bolsheviks weren’t any kinder to the Tsarists in 1917.

Americans have a great tradition of political activism. Our constitution gives us the right to assemble peaceably and petition the government for redress of grievances.

We have a system of periodic elections. We don’t have to force the government to let us vote.

We also have a constitutional right to come together in convention and fix anything that doesn’t work properly in Washington. There’s no need for blood in the streets.

POLITICAL ASSASSINATION

2011-10-01T06:57:00.000-07:00

Back in the good old nineteen fifties, we used to have Congressional hearings to ferret out the bad guys. You know, the pinko Commie traitors who advocated the violent overthrow of the United States government.

Civil libertarians screamed and hollered. Eventually, the head witch hunter, Wisconsin Senator Joseph McCarthy, was debunked, censured, and faded from the scene.

I reflected on those days as I read news reports about the killing of Muslim Imam Anwar al-Awlaki.

Here’s an example of what the mainstream media were saying about it:

An American-born cleric killed in Yemen played a "significant operational role" in plotting and inspiring attacks on the United States, U.S. officials said, as they disclosed detailed intelligence to justify the killing of a U.S. citizen.

Anwar al-Awlaki was killed early Friday in a strike on his convoy carried out by a joint operation of the CIA and the U.S. Joint Special Operations Command, according to counterterrorism officials. Al-Awlaki had been under observations for three weeks while they waited for the right opportunity to strike.

Another U.S. official said a second American citizen died in the airstrike that killed al-Awlaki. Two other men also perished.

The second American, Samir Khan, edited the slick Western-style Internet publication Inspire Magazine that attracted many readers.

The online magazine published seven issues offering articles on making crude bombs and how to fire AK-47 assault rifles. U.S. intelligence officials have said that Khan — who was from North Carolina — was not directly responsible for targeting Americans.

I wrote a blog three years ago called “Murdering Presidents.” It’s worth another look in light of recent events.

President Obama enjoyed a spike in public approval when Navy Seals killed Osama Ben Laden on his orders. No doubt the pollsters will note a similar boost to his popularity as a consequence of this latest Mafia style hit.

I got to wondering how the people of the United States would have felt if Awlaki had been found in a condo in Colorado rather than a convoy in Yemen. Does the government’s “kill or capture” list specify when and where to kill?

And what about companions and bystanders? Does the official hit list include anyone who might be hanging around with the targeted wrongdoer?

Anyway, who makes up the hit list and when do they do it?

I was surprised to learn that Imam Awlaki led Muslim federal workers in prayer after 9-11, and that he was invited to speak at the Pentagon about the same time, as part of the government’s outreach to Muslims.

So many contradictions.

Cop killer Troy Davis is administered a lethal injection, while hundreds pray and protest in the street. Major Nidal Malik Hasan, the Fort Hood terrorist who killed thirteen people in November of 2009 has yet to be brought to trial. Magazine editor Samir Kahn is killed by the CIA and nobody cares.

At the risk of being branded a constitutional curmudgeon, I have to say that a “kill or capture” list that is prepared by officials of the federal government who decline to identify themselves or speak only on condition of anonymity, scares the hell out of me.

And I am not at all comfortable with the idea that CIA assassinations are OK as long as they are authorized by the President of the United States.

Especially a first term President who is up for re-election.

In the last analysis, liberty is all about due process of law. Before we put up a poster that says, “Wanted: Dead or Alive” there ought to be at least enough evidence to issue a warrant.

Where the heck is the ACLU when their man is in the White House?

OLD GLORY; NEW PROBLEM

2011-09-29T14:41:00.000-07:00

One of the more interesting people who spoke at the Harvard Law School last week end was Professor Richard Parker.

Bit of a rebel, he. In the midst of a solid phalanx of progressive, nay liberal, colleagues, this fellow has the kahoonas to favor outlawing desecration of the American Flag.

What? A Harvard Professor who doesn’t think burning Old Glory as a political protest ought to be protected by the First Amendment?

Indeed. He may well have had something to do with the drafting of the simple, one line constitutional amendment which gets introduced in Congress every couple of years.

The flag fuss began back in 1968 when Viet Nam War protesters started burning flags in public to express their opposition to the war. Congress passed a law against it. So did 48 of the 50 states. In 1989, by a 5-4 vote in Texas v Johnson the Supreme Court declared those laws unconstitutional.

Undaunted, Congress passed another Flag Protection Act. It, too, was found to be in violation of the First Amendment by another 5-4 vote in the high court.

Ever since then, Congress has been flirting with a constitutional amendment to authorize flag desecration laws. To send a constitutional amendment out to the states for ratification takes a two thirds vote in both houses of Congress. The House of Representatives regularly approves the amendment by two thirds.

The Senate never does. Came within one vote in 2006.

Here’s what the proposal says:

The Congress shall have power to prohibit the physical desecration of the flag of the United States.

Sounds pretty simple. Over seventy-five percent of the American people are in favor of it. And if it gets into the constitution, the Supreme Court can’t touch it. After all, the constitution can’t be unconstitutional, can it?

We’ve had flag laws in this country for years. The size and shape. The colors. How many stars and how many stripes. How it should be flown and when. Even how to fold it.

Laws prohibiting flag desecration bump up against the First Amendment’s protection of free speech only when it is done to send a message. If I burn the flag, alone in the alley behind my garage, because I’m ticked off at the post office, I’m not speaking to anybody.

But don’t do it in front of a crowd. A guy named William Thomas tried it in Dodger Stadium on April 25, 1976 and ended up making Chicago Cubs outfielder, Rick Monday, who ran up and saved the flag, an American icon.

The debate over flag desecration is classic constitutional science. The Founders got into it in 1787. Article 3 of Section 3 of the U.S. Constitution says:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

I have no doubt that burning the stars and stripes or flying a Nazi flag would have been considered giving aid and comfort to our enemies in 1943.

But what of 2011, when our enemies are an amorphous band of terrorists, some foreign, some domestic? Isn’t there a difference between politics and war? Between passionate debate and inciting to riot?

Constitutions are the ultimate form of popular law making. That’s why the constitution begins with the words, “We The People…”

Like Professor Parker, I am a populist. He says that the great division in America is not between the rich and poor or the right and the left, but between the elite and the regular folks.

I’m with him. I have faith in the intuitive wisdom of the great unwashed.

And I am a little leery of letting one vote in the United States Senate or one vote in the Supreme Court override three quarters of the American people.

HARMONY AT HARVARD

2011-09-28T12:03:00.000-07:00

Republicans and Democrats? Liberals and conservatives? The Left and the Right?

Fox News and MSNBC, for Heaven’s sake? Together? At the same place? In the same room?

It really happened. I was there at the Harvard University Law School along with more than 400 other folks who came from near and far to talk about the United States of America. About what’s wrong with our country. And about what can be done to fix it.

Billed as ConConCon, it was a conference designed to launch a campaign for calling a convention under Article V of the U.S. Constitution to consider amendments.

It would be a convention that could give the people of the states a way to change the way politics works in Washington D.C. It would be a convention that could talk about things and propose things that Congress will never talk about and never do.

Term limits. Balanced budgets. And the money. Money that flows like raw sewage from K Street to the Capital. Money that corrupts. Money that influences. Money that changes our nation from a democratic republic to a sinister oligarchy of career politicians, corporate fat cats, ward healing bosses, and the lobbyists who tie them all together.

I went like Marley’s ghost. Ten or fifteen years older than anyone in the room, I was writing and speaking about a convention when many of them were watching Sesame Street.

It warmed my heart to see and hear this new generation of patriots.

Larry Lessig, the brilliant, liberal, Harvard professor, leading an all star cadre of academics and activists, keynoting the conference from the left with a witty and passionate power point presentation.

Mark Meckler, the self-effacing small town lawyer from northern California, whose Lincolnesque eloquence has thrust him into the leadership of the Tea Party Patriots, making the case for his constitutents’ support of an Article V convention.

If the room was packed with citizens who came to listen and learn, to find out what can be done about the mess in Washington and see how they can lend a hand, it was also sprinkled with drum beaters who brought their own agendas, and touted their particular versions of the road to revival.

They all have high sounding names, web sites, plans and ideas. The Alliance for Democracy. Americans United to Rebuild Democracy. Public Check on Congress. The Madison Amendment. Move To Amend. WeThePeople. Rootstrikers.

A cacophony of solutions for the same laundry list of problems, looking for harmony. Trying to find the common ground. What can we do together? Where do we go from here?

Annabel Park, a co-founder of the Coffee Party said it was like being on a first date. So far, so good. Now, what’s next?

It was, indeed, a most remarkable coming together. The speeches were uniformly marked with civility and deference. While several, including the distinguished Harvard University Professor, Lawrence Tribe, were skeptical about the wisdom or efficacy of a convention, there was no debunking, no ridicule, no attempt to stifle the common effort.

Only one voice sang off key; a fanatic, radical socialist who used his minute at the microphone to hawk his Socialist Constitution and accuse the Tea Party of racism.

He got an audible groan from the crowd and an admonition from the chair.

Of course, I went to Cambridge with some flyers of my own, inviting conferees to register as delegates to Convention USA, a place on the Internet where ordinary people can work together to find the best solutions to our national dilemma.

If Harvard was a first date, maybe those good folks will want to go steady some day.

The vehicle is right there at www.conventionusa.org.

INTERNET STUDS

2011-09-14T11:41:00.000-07:00

Used to be everybody had family. Mom, Dad, Grampa and Gramma. Aunts, Uncles, cousins. And, before the word ‘sibling’ came into fashion, we had brothers and sisters, too.

For a lot of folks, family is still important. My brother, Ray, has become a genealogy guru. He’s one of millions who spend their days searching for their roots, finding every branch of the family tree.

But more and more, these days, family is losing ground.

A recent news story on the telly introduced us to a woman who had discovered that the sperm donor who sired her two children has accounted for more than seventy others.

The lady was shocked and dismayed.

How dare that rascal go about randomly spawning half- brothers and half- sisters of her offspring without her approval or consent?

What, indeed, is the world coming to?

Google turned up this:

Xytex Cryo International Sperm Bank provides a diverse panel of donors that meet strict criteria before being accepted into our donor program. Use our intuitive search features along with the extensive information we offer about each donor to find the perfect match.

The web site goes on to say that pictures of their stable of studs are available in various formats, as well as transcripts of audio interviews.

After all, at $500 a pop, you don’t want to be buying a pig in a poke.

You can pick a daddy with bright blue eyes and long lashes. With a dazzling smile. Maybe a cute little dimple on the chin. Tall. Athletic. A college graduate.

Of course, the guy might be on heroin. Or his mother an alcoholic. Or his father a serial killer. But hey, dimples matter.

Some sperm donors have sired over a hundred children. Nobody really knows. The industry is basically unregulated.

Ah, yes. Free enterprise. The free market. Supply and demand. The American way.

Isn’t it wonderful? Our omniscient federal nanny tells us what kind of light bulbs we can buy and what we must do with them when they burn out, but nobody much cares where our DNA comes from or where it is going.

Back in the day, folks had to get a license from the state to make babies. It was called a marriage license. Had to have a blood test. Two witnesses and a judge or clergyman signing off. The county clerk kept all the records and called them vital statistics.

Lots of young people are going online these days looking for daddy. And half- brothers and half- sisters. Some stranger who looks like them. Some stranger who can provide a sense of belonging. A feeling of indentity.

Now there are registries on the Internet. Places where you can go to find out who you are.

Sperm donors can make as much as $1,000 a month. It’s all very discreet. The clinic is usually located in a large office building. Lots of traffic. Nobody notices a guy checking in three times a week.

Donors are screened so that the most fertile are selected. High sperm count. Good motility. High performers are in demand.

Of course, not all studs are handsome. One web site says that it is natural to feel rejected if you are not chosen. Some sperm banks won’t tell donors whether they are daddies. Don’t want to hurt anybody’s feelings. And besides, it’s none of their business.

Anyway, in America, unborn babies are chattels. They belong to their mothers, who can abort them for any reason or for no reason.

You don’t need a father. You don’t need a family. You don’t need grandparents or a name. Or a history. You’ve got a nanny in Washington, D.C. And nanny will protect you, defend you and define you.

What else do you really need? A pedigree? Nah. Pedigrees are for dogs and horses.

FIXING CONGRESS

2011-09-08T07:12:00.000-07:00

On September 24 and 25, I will be attending a conference at Harvard Law School, billed as ConConCon. It’s all about organizing people to work for a national convention to propose amendments to the U.S., Constitution.

I have been saying for a long time that people of all political views should support the idea of an amendatory convention as described in Article V. At this Harvard conference, it’s really going to happen.

There will be two keynote speeches. One from the left and one from the right. The liberal is Harvard Law Professor Lawrence Lessig. The conservative is Mark Meckler, the National Coordinator of the Tea Party Patriots.

Strange bedfellows to be sure.

I’m not sure exactly what those two fellows are likely to agree upon. But it would seem that they both think it’s time to organize an Article V convention. That’s because they both think there is something wrong with the government in Washington that can’t be fixed just by electing new people.

Lessig has a web site called “fixcongressfirst.” He is obviously of the opinion that money talks too loud in the nation’s capital. He’s unhappy about the Supreme Court’s decision in the Citizens United case, and I suppose he would like to see an amendment that would reverse that decision or somehow address the problem of mendacious politicians selling their loyalty and their votes.

That’s an issue which would probably find support among Mr. Meckler’s people as well. The whole Tea Party movement was based on dissatisfaction with the Congress.

So the issue which a convention would have to address is this: what do you do about it?

Tough question.

The old saying is that all is fair in love and war. Add politics. I don’t know how you can legislate against political enthusiasm and effort. You can’t stop rich people from spending money to support their favorite candidates any more than you can stop poor folks from marching in the streets to support their candidates.

And really, who would be competent to do it? The government? The very same government that is being fought over at the ballot box? Not exactly an impartial arbiter.

Let’s face it, the money problem is a function of two things: the size of the constituencies and the size of the prize.

The Founders tried to require congressional districts of no more than 50,000 people. Today they comprise about 700,000. Hard to walk door to door. Television. Newspapers. Bulk mail. It all costs big bucks.

If we had districts of 50,000 people, the House of Representatives would need over 6,000 seats. Sounds unwieldy, but then you have to ask yourself whether 435 Congressmen and women can really represent over 300 million citizens.

A large part of the problem, of course, is the extent to which the government is involved in the economy. As long as Washington is a cornucopia, there will be competition among the greedy for the goodies.

Political contributions are usually made on a cost-benefit analysis. You give in order to get.

Maybe we need to think about a two tier system. Small districts in which the voters can elect representatives they know and trust, who in turn would send delegates to Washington when Congress is in session.

The delegates could do the committee work and the ceremonial duties, but the local representatives would vote on all actual legislation. With modern communications, they don’t need to be in the Capital Building to register their ayes and nays.

Something to think about.

THE REAL ISSUE

2011-09-01T06:56:00.000-07:00

All the smart people on television are saying that the Massachusetts health care system, enacted when Mitt Romney was governor will be a mill stone around his neck in 2012.

As a matter of fact, they’re starting to call it RomneyCare and comparing it with ObamaCare.

RomneyCare, they tell us, will drive the conservative base of the Republican Party away from Romney.

For two reasons.

First because it proves that the former Bay State Governor favors socialized medicine, just like Obama, Pelosi, Reid and the rest of ‘em.

And second, because the Massachusetts plan has turned out to be enormously, prohibitively, expensive. Just like, so they say, the federal version is going to be.

It’s too bad. Too bad that the people of the United States will be distracted from the real issue.

It’s not about whether RomneyCare is better than ObamaCare. Or whether either or both systems are too expensive or too intrusive in our lives, or too restricting of the medical profession, or whether either or both systems restrict medical services for the elderly, or any of the other details where the devil is to be found.

No sir, the real issue is very simple.

IS HEALTH CARE A STATE OR A FEDERAL MATTER?

Is the health of the citizens one of those things which were left to the exclusive jurisdiction of the individual states under the tenth amendment, or did the people who ratified the constitution in 1789 intend that every sneeze and cough and laceration and policy of medical insurance of every person in America is an incident of interstate commerce and subject to regulation by the government in Washington D.C.?

Mitt Romney owes no apology for the Massachusetts health care plan. Massachusetts is a liberal state. It has a liberal legislature. Romney was elected Governor of Massachusetts. He was a public servant.

If the liberal people of Massachusetts and their liberal legislators wanted to establish socialized medicine in their state, it was the proper role of their Governor to help them do it.

If the Massachusetts plan is not a successful blue print for health care that other states might want to adopt, so be it. It’s a state by state issue.

And Romney owes no apology to the Republican Party for getting himself elected Governor of the People’s Republic of Massachusetts.

On the contrary, it is one of the strongest arguments in favor of his election as President of the United States. The occupant of the oval office has to be the President of the whole nation. East to West. North to South. Liberal and Conservative.

The White House is not a place for an ideolog, a policy wonk, a guy with an agenda. It’s a place for a pragmatic Chief Executive, who can work with diverse representatives of the people in Congress, who can protect and defend the constitution of the United States, who can make sure that in its enthusiasm for doing what is popular with its constituents, the Congressional train does not jump off the constitutional track.

Framed as an issue between states’ rights and national powers, the RomneyCare v ObamaCare debate highlights and capsulizes the fundamental decision which will determine whether the United States of America will survive as a nation into the twenty-second century.

The Union of Soviet Socialist Republics was split asunder after an embarrassing, inconclusive incursion into Afghanistan. It could happen here.

The dichotomy between the French Revolution and the American Revolution remains. What is not decided by civil debate and rational compromise will be determined by force of arms and blood in the streets.

It could happen here.

STIMULATION NATION

2011-08-30T11:09:00.000-07:00

To hear the TV pundits tell it, the American people are currently awaiting President Barack Obama’s new plan to stimulate the economy.

From both sides of the aisle, the politicians are yelling, “Jobs, jobs, jobs.”

The economy is the big issue of the day. Unemployment is rampant. Real estate isn’t selling. Businesses are closing. Sales are lagging. Buying is postponed.

How in heck do you stimulate the economy? How do you get people to work, to buy and sell, to build, to get up and go?

Rumor has it that one of the president’s recommendations will be that the federal government extend unemployment benefits. Again.

Typical unemployment benefits last for 26 weeks. In New York, you can get another 33 weeks of ‘emergency’ benefits, and an additional 20 or so weeks of ‘supplemental’ benefits.

The theory of extending benefits to stimulate the economy is that the unemployed will spend the money and all that money being spent will create jobs, which in turn will create more spending and more jobs.

By this logic it would follow that giving every person over the age of say, 18, in Detroit a million dollars would result in a bustling, stimulated economy in that city.

I don’t think so.

I suspect that the casinos and the drug dealers would prosper, but it would be hard for all those millionaires to find anyone willing to cut the grass, paint the house or shine their shoes. And who would drive the cabs or the buses, or register the deeds? Millionaires don’t have to work.

I’m waiting to hear a politician who has the cahoonas to say, “The issue isn’t ‘jobs, jobs, jobs’ the issue is ‘work, work, work.’.”

There’s a difference.

Rodney Dangerfield or Henny Youngman would explain it this way:
“My brother-in-law has a great job. He doesn’t have to work at all.”

That’s about the size of it. Everybody wants a job. Nobody wants to work.

Franklin Roosevelt put people to work with the WPA and the CCC. Bill Clinton touted ‘workfare’ over welfare. They were Democrats for heaven’s sake. Making people earn their daily bread is not some heartless capitalist, Republican idea. It’s just plain common sense.

Our goal should be to have a busy, industrious, productive population. To be a people imbued with a solid work ethic. To be builders and makers, and doers. Inventors and cleaners and fixers.

Somehow America has to go from an entitlement society to an opportunity society.

Here’s an agenda to start with:

We need urban homestead laws that will allow people to build up sweat equity in abandoned houses.

We need energy parks where young and not-so-young people can spend time generating useable energy through physical activity. In all the talk about clean sources of energy, nobody mentions human effort; walking, running, pulling, pushing, carrying, climbing. Make it fun, make it pay. The pyramids were built before there were bulldozers and cranes. Or entitlements.

We need to clean up our cities. Nothing destroys the work ethic more than seeing prisoners in orange suits picking up trash along the freeway while thousands of able bodied men and women draw welfare and watch television. Picking up trash is useful, honorable, manual labor. It isn’t punishment.

We need people to till the soil. To plant and prune and pick. In the 1940’s we had Victory Gardens. There’s lots of vacant real estate in America. And lots of hungry people in the world.

We need leaders. I don’t mean big shot political leaders in Washington and the state capitols. We need men and women who have the imagination to come up with useful projects and the chutzpah to organize teams to carry them out.

In short, we need to get off our butts and go to work.

THE LAST PREROGATIVE

2011-08-23T15:30:00.000-07:00

In 1982,I gave a speech at Yale University. I called it "The Last Prerogative."

In it, I called for a convention under Article V of the federal constitution to propose needed amendments to our national charter.

Reading it again, I could not help but think how pertinent the words are to issues that daily confound the people of this country, saturate television and dominate the Internet pages of 2011.

Here are a few paragraphs:

"Despite the befuddlement of Keynesian economics, government fiscal responsibility is not, as so often urged by "gliberals", a mere question of transient political or economic policy, better left to statutory or administrative regulation than constitutional mandate.

"The Congress is already empowered by the Constitution to lay and collect taxes for the purpose of paying the debts of the United States. I seriously doubt that any of the delegates who labored through that hot summer of 1787 to write the Constitution would have believed for a moment that Congress might someday neglect or refuse to lay and collect taxes to pay the debts of the United States and persist in that refusal year in and year out until more than a trillion dollars of unpaid obligations had accumulated.

"Indeed, I think that any fair reading of Article I, Section 8 of the Constitution would yield the conclusion that if the common defense and the general welfare are things that ought to be provided for, debts of the United States are things that ought to be paid.

"Fiscal responsibility is not a matter of politics or economic policy. Capitalist states can be run on red ink, and socialist regimes can have balanced budgets.

"Fiscal responsibility is not merely the platform of a political party or the goal of a particular administration. It is a measure of the credibility and viability of the established institution of government itself.

"Nor is fiscal responsibility a matter of choice. The effects of fiscal irresponsibility are not immediate, but they are certain. We know that our government is deeply committed as the guarantor of the nation's economy. The government stands behind mortgage loans, business loans, and student loans. The government protects our bank deposits and bond issues.

"These secondary obligations are so immense that they dwarf even the monstrous primary public debt, not to mention the moral commitment which underlies our many national entitlement programs. If we default on these obligations, we can expect nothing less than civil disorder.

"This is an irrefutable lesson of history. Shay's Rebellion, the Whiskey Rebellion, the Veteran's March and the Welfare Marches show that the American people are not apathetic when they are hungry or homeless. They will not exchange a lifetime of savings for a fistful of worthless scrip without a fight.

"In such an extreme case, the American people will show no more restraint in preserving the institutions of government than they will be inclined to protect the unhappy temporary occupants of public office.

"In summary, I submit to you the following propositions. Since fiscal integrity relates to the stability of our system of government, the means of assuring it belong in our Constitution.

"The proper constitutional means of assuring the fiscal responsibility and integrity of the union can only be reliably proposed by a body of citizens which is not itself participating in the excesses to be guarded against.

"An amendatory convention called pursuant to Article V of the United States Constitution is such a body, created and intended by our forefathers precisely for the purpose of enabling the sovereign people of the several states of the American union, without bloodshed, to assert their last prerogative as free men and women: to alter the form of the government (as it was said in the declaration of independence), '. . . laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.'

"Finally, I submit to you that the act of convening an amendatory convention under article V would in itself be more significant than whatever particular amendment or amendments 'might be agreed upon as a result of it. For the convention itself represents a return to first principles. It represents a reassertion of the right of self-determination, and a return to representative democracy in America. I can think of no cause more worthy of any responsible citizen's best efforts and total commitment."

That's what I said in 1982. I'll say it again at Harvard in September.

www.conconcon.org

"SUICIETY"?

2011-08-05T15:08:00.000-07:00

On November 18, 1978, nine hundred seven people died in the worst slaughter in American history until the attack on the World trade Center.

They were people who followed a charismatic leader who hated religion, capitalism, and rich corporations. A man who led them to the enlightenment of socialism.

His name was Jim Jones. He urged them all to drink the Flavor Aid laced with valium, chloral hydrate, cyanide and phenirgon .

They did. And they all died.

And so a sweet tasting sugar drink has become a metaphor for mass suicide.

To drink the Kool Aid is to accept without question the teaching of the leader, the shibboleths of the party, the political correctness of attitudes, opinions and choices.

Because everybody’s doing it. Until it kills you.

In her new book, DON’T LET THE KIDS DRINK THE KOOL-AID: Confronting the Left’s Assault on Our Families, Faith and Freedom, Marybeth Hicks has sounded an alarm that should ring loud and clear in every household in America.

In 192 tightly reasoned, fact-filled pages, Marybeth exposes the agenda of those who use our schools to indoctrinate children with secular humanist values that fly in the face of the Judeo Christian traditions upon which the United States was founded.

Some examples:

• Teachers who believe it is absolutely essential to teach their students to become activists who will seek to change our political system, but who do not think it’s necessary that they understand concepts like federalism, separation of powers, or checks and balances among the branches of government.

• A sex test administered to eleven and twelve year old school children in which they were asked about the difference between oral, vaginal and anal sex and if they know how to put a condom on themselves or their partner.

• A Sacramento boy who was told by his school authorities that he was not allowed to display the American flag on his bicycle when riding to and from his school.

• A New York middle schooler suspended for wearing a rosary around his neck, a Pennsylvania fifth grader barred from inviting her classmates to a Christmas party at her church, while Massachusetts fifth graders were taken on a class field trip to an Islamic community center and several non Muslim boys permitted to join in prayers with the Muslim men.

On page after page, the author exposes the subtle and not so subtle ways in which the political left has coopted the teaching profession, the public schools and the popular media to preach an orthodoxy of atheism, socialism, and hedonism.

Their target? Our children and grandchildren.

The little folks who spend as much as 7 or 8 hours a day glued to a television set, a computer, an Iphone and all the other gadgets that define the lives of generation M.

Sadly, the radical left is winning the minds and hearts of the kids. Here’s what the polls show:

They think socialism is better than the free market.

They think Christianity is judgmental and mean spirited.

They think America is the villain of world history.

They think family does not mean marriage.

The think gender is not biological, but a matter of personal choice.

They think human greed is destroying the earth.

Happily, Marybeth doesn’t leave us in nail biting despair. As the involved mother of four, a popular columnist, busy consultant and much sought after speaker, she has plenty to share with concerned parents and grandparents.

Her prescriptions resonate with common sense. See for yourself.

http://www.amazon.com/Dont-Your-Kids-Drink-Kool-Aid/dp/1596981512

MORE SMOKE AND MIRRORS

2011-08-03T07:48:00.001-07:00

Well, the gentlemen in Washington have done it again.

We are treated to televised announcements by Harry Reid and Mitch McConnell telling us that ‘the system works.’ Once again, we hear that politics is the art of compromise, that each side got less than they wanted, but all it was possible to get.

Here’s what I understand has been done:

1. Congress has raised the debt ceiling by something like 3 trillion dollars. Which means that the national debt can swell from 14 trillion to about 17 trillion without bumping up against the statutory maximum.

2. Congress has committed to ‘spending cuts’ also known as ‘deficit reduction’ of something over 2 trillion dollars.

3. About three quarters of those spending cuts are yet to be identified. A committee of 12 legislators will be appointed to come in with recommendations on the subject.

As I understand it, the new debt ceiling should last until about March of 2013. So the federal government now has its credit limit boosted high enough so that it can continue to borrow money to live on for about another year and a half.

Isn’t that wonderful news?

We get to spend an additional 3 trillion dollars we don’t have, provided, of course, that we can agree on not spending 2 trillion we already have agreed to spend.

Our elected representatives have decided to postpone taking any steps toward fiscal responsibility for another eighteen months. Then, of course, we will get to do it all over again. With a new Congress and either a new or a renewed executive office.

When will we Americans begin to realize that it doesn’t make any difference who wins the elections as long as the system is broken?

Our two hundred year old constitution simply does not address the question of fiscal integrity. Our forefathers apparently assumed that the elected representatives of the people would not borrow more than necessary. And would provide for timely repayment of our debts.

Silly fellows.

Didn’t they know that voters have a tendency to vote themselves rich? Weren’t they aware that democracies throughout history have lasted less than 200 years because they go broke ?

Frankly, it’s hard for me to understand how a nation can go broke when it has the power to coin money and issue currency.

If counterfeiters can get rich printing hundred dollar bills, why can’t the federal government?

I looked at the annual reports of the U.S. mint and the Bureau of Engraving and Printing. Last year the mint turned in a piddling profit of $405.8 million. The B.E.P. was worse. It made only $43,428,000.

Of course, the Bureau has a problem in that it has only one customer, the Federal Reserve Bank. The Bureau of Engraving and Printing is part of the United States Department of Treasury. It cranks out about 6 billion greenbacks every year, which it sells to the Fed for a little less than ten cents apiece.

Can’t make a lot of money selling hundred dollar bills for ten cents apiece, now can you?

Maybe it’s time for the people of the United States to realize that our government is in the business of manufacturing currency.

Our Constitution should require that we manufacture enough every year to pay the debts of the government. We should never run a deficit. We should never have to borrow money.

Wouldn’t that cause inflation?

Only if we spend too much. And if we do, the consequences will be immediate. We will pay the price of our own profligacy.

Not our children and grandchildren.

LOAVES AND FISHES

2011-07-31T10:58:00.001-07:00

A miracle is defined as a suspension of the laws of nature; an event which is inexplicable, contrary to the understanding of mankind.

In short, miracles are impossible.

Magicians do tricks. Legerdemain is the art of making things appear impossible. But it’s all a matter of appearance.

Miracles are rare and usually controversial. Skeptics will always insist there is a logical explanation.

Bottom line is, you either believe in miracles or you don’t.

I do.

This morning at Mass, the reading was the story of the loaves and fishes. A little boy comes up with five loaves of bread and two fishes and Jesus feeds five thousand people. With twelve baskets full of left overs.

A miracle?

You bet. I’ve seen what 32 relatives can do to turkey, mashed potatoes, dressing, and a boat load of fixings. Before the pumpkin pie and ice cream.

Still, I never hear that story without trying to visualize that vast historic picnic. Were the apostles going around with baskets which mysteriously refilled every time a loaf of bread was removed? Were the two fishes a momma fish and a daddy fish who quickly generated vast edible progeny?

I always come back to the picture of a little boy offering to share his entire supply of food because so many people were hungry.

What kind of a schmuck would take a bite of the kid’s fish and keep his own stash of food for later on?

Is it possible that the true miracle that day was the change of human hearts from selfishness to generosity, from hoarding to sharing, from thinking about me to caring about others?

A suspension of human nature? Inexplicable? Contrary to the general understanding of the way people act?

I’d say so.

The experts on Madison Avenue will tell you that everybody always acts in their own self interest. What’s in it for me? That’s behavioral science. Anything else has to be a miracle.

For over two thousand years, Christianity has brought to this planet the miracle of charity. People caring for people. The word ‘charity’ comes from the Latin ‘caritas’ meaning love.

How many soup kitchens, how many hospitals, how many shelters and schools and homes for the aged have been spawned by a single, simple act of charity, of caring, of love?

And how many billions upon billions of one-on-one acts of generosity and kindness have oiled the machinery of human society?

Questions which bring me to the politics of the day.

I hear our President demanding that the rich be taxed to pay entitlements for the have-nots.

That’s not the way it works, Mr. O.

Does anyone suppose that the Apostles muscled their way through the crowd, snatching lunch baskets and doling out goodies?

Not hardly.

The relationship between a giver and a receiver is one marked by caring and gratitude. It forms a bond between the haves and the have-nots. We and they become all of us.

Not so with the nanny state. When I hand my wallet to the guy with a gun to my head, it’s not a miracle.

It’s robbery.

THE CAMEL'S NOSE

2011-07-20T19:25:00.000-07:00

Several friends have forwarded emails detailing the growth and influence of Arabs in Michigan.

The City of Dearborn, located just west of Detroit in Wayne County hosts the largest Arabic population of any city in the United States.

When I was a Circuit Judge I back in the early 1960’s I campaigned in Dearborn. It was a city of about 110,000. Orville Hubbard was the mayor. He was best known for sending birthday cards to all the voters and for trying to keep black folks from moving into his town.

There were a lot of Lebanese Christians living there in those days.

In recent years, immigrants from Iraq, Yemen and Palestine have swelled the Arab numbers. They are mostly Muslim.

Dearborn is the home of the Islamic Center of America, the largest Mosque in the United States.

There have been a few ugly incidents in Dearborn lately. In June, Quran-burning pastor Terry Jones and some of his followers held a rally in Dearborn and stirred up quite a bru-ha-ha. He wore a tee shirt emblazoned with the message, “Everything I need to know about Islam I learned on 9-11.”

In 2009 Dearborn police arrested Christian evangelists who were trying to talk to people attending the Dearborn International Arab Festival. Videos showed that the police acted without good cause and even the ACLU came to the defense of the Christians.

Asserting that the camel has his nose in the tent, one email has a link to the web site of the Michigan Department of Human Services which provided a Food Assistance Date Change Letter written in Arabic. The purpose of the letter was to tell people getting food stamps that their stamps would arrive a day later.

The letter was also available in English and Spanish.

The email went on to claim that a phone number at the Department features a recording which prompts callers to “dial three for Arabic.”

A great many Americans are put off by recorded phone messages that begin with “dial one for English.”

But I sense that the real gripe here is that so many Arabs are getting food stamps in Michigan that it is necessary for the Department of Human Services to communicate with them in their native tongue.

After all, there are Poles in Hamtramck, Hungarians in Del Ray and Dutch in Grand Rapids. Don’t some of them get food stamps too?

Probably. But not enough of them who are poor or haven’t learned English.

Or be fortunate enough to have a kinsman serving as the Director of the Department of Human Services.

Ismael Ahmed was born in Brooklyn, New York in 1947. He came to Detroit, Michigan with his family when he was 6 years old. After high school, he journeyed to Vietnam and Korea and came back to the United States and became active in the United Auto Workers union to put himself through the University of Michigan-Dearborn. After graduation, he began helping out his neighborhood and his community and in 1973, Ahmed co-founded the Arab Community Center for Economic and Social Services (ACCESS). He was appointed executive director in 1983 and was responsible for overall operations of the organization as well as the executive administration of the Arab American National Museum. The largest Arab-American human services organization in the United States, ACCESS has affiliates in 11 states and offers more than 90 programs with more than 900,000 client contacts annually.

In September, 2007, Governor Jennifer Granholm appointed Ismael Ahmed Director of the Michigan Department of Human Services, which administers the federal food stamp program.

Mr. Ahmed is now the Assistant Provost at the Dearborn Campus of the University of Michigan.

The new Governor, Republican Rick Snyder, has appointed former Chief Justice Maura Corrigan as Director of Human Services.

Maybe now the letters will be written in Gaelic.

TWO KINDS OF PEOPLE

2011-07-17T13:40:00.001-07:00

In the 1972 film, “The Candidate,” Robert Redford plays a political novice named Bill McKay who runs for the United States Senate in California.

McKay’s standard stump speech strikes a populist note as he appeals to voters of every kind and condition.

At one point, riding in a taxi, exhausted from the grueling campaign, McKay does a parody of his campaign speech which is quite hilarious, addressing the young and old, rich and poor, black and white, republicans and democrats, men and women, smart and dumb, good and bad.

It is, I suppose, in the nature of politics that everything comes down to two choices. Yes or no. Up or down. Yea or nay. Ying or yang.

As we begin to wallow in the 2012 presidential election cycle, it strikes me that America is truly divided into two kinds of people. The good guys and the bad guys.

The good guys are the citizens who care about their city, state and country. They listen to the news. They talk about the government. Argue about it. Worry about it. They know about our past. They care about our future.

The bad guys are the residents who are indifferent, ignorant, passive, uninvolved. They are like a herd of cattle, who go where the cowboys chase them. If they stampede out of control, they can do a lot of damage. Most of the time, they just eat the grass and moo.

The good guys accept the responsibility of self-government.

The bad guys respond to the manipulation of their bosses.

The good guys vote.

The bad guys don’t vote.

There are about 130 million good guys in America.

There are about 100 million bad guys.

I got to thinking about this because of an on-going debate over the way we elect the President of the United States.

Most folks think that the President should be the person who receives the most votes in the Presidential election. Our Constitution, however, provides that the President is elected by a group of electors who are chosen in each state.

Forty-eight states tell their electors to vote for the candidate who wins in their state. Winner take all. If a candidate wins in California by only a few hundred votes, he or she gets all 55 of California’s electoral votes.

And the size of the voter turn out makes no difference. If 95% of the adult population of Missouri turns out to vote, Missouri gets 11 electoral votes. If only 35% of the voters in Tennessee go to the polls, Tennessee still gets 11 electoral votes.

That’s because the electoral college is based on population. It makes no distinction between good guys and bad guys.

In 1969, the Bayh-Celler amendment, abolishing the electoral college, was passed in the House of Representatives by a vote of 339 to 70. In the Senate, the vote was 54 in favor and 36 against, so it failed to pass by a two-thirds majority.

Now there is a new effort being made. It doesn’t amend the U.S. Constitution. It doesn’t abolish the electoral college. It simply asks each state to give their electoral votes to the candidate who gets the most votes nation-wide.

Last Friday, the legislature of the State of California adopted the National Popular Vote Plan. It’s now on Governor Jerry Brown’s desk.

Eight others have already agreed to the plan. Illinois, Maryland, Massachusetts, Washington, Vermont, Hawaii, New Jersey and the District of Columbia have a total of 77 electoral votes.

With California’s 55 electoral votes, the National Popular Vote movement will have almost half of the 270 votes needed to change the system.

It’s time for the wanna-bes who are courting Iowa and New Hampshire to step up and take a stand in favor of the good guys.

CASEY ANTHONY

2011-07-12T07:28:00.001-07:00

Folks ask me what I think of the Casey Anthony trial.

I was, after all, both a trial and appellate judge. I ought to know something about the system of criminal justice. I ought to have a definitive opinion. Everyone else does.

Candidly, I didn’t pay much attention to the Casey Anthony trial. Maybe I’m he only one who didn’t.

Even so, it was hard not to notice. Fox News had a former judge assigned full time to attend and report on the case. All the networks were abuzz with Casey Anthony stories. There were reporters and analysts and replays ad nauseam.

I always wonder why some cases get blown up in the media and others don’t. Lorena Bobbitt. Now there’s a case that everyone talked about. I suppose there has to be something truly bizarre about a case before the media puts it on the front page.

Like a mother whose child is missing for a month who never calls the police.

Admittedly, Casey Anthony comes off as about the most despicable villain imaginable. A pathological liar. A selfish, self-centered, tramp, who seemed willing even to throw her family under the bus to save her own hide.

Indeed if the issue in the criminal trial were simply whether Casey Anthony was a bad person, the verdict would have been quick and guilty.

But of course, it wasn’t. We’re talking here about a court of law where the issue of guilt or innocence is determined according to rules of evidence that are designed to discover the truth without the corrupting influences of emotion, passion, prejudice or presumption.

Or media hype. Or Internet gossip.

That’s why the jury was sequestered. No TV. No radio. No newspapers. No access to the din of commentary and conjecture which inundated the rest of us.

Still, it is true that criminal trials are open to the public. The community has a right to know that those who violate the law are brought to the bar of justice. The accused has the right to a public trial as well. Nothing is more poisonous to liberty that a secret inquisition.

Courtroom doors have always been open. In the days of Abraham Lincoln, when judges and lawyers rode the circuit, people would flock to the courthouses and listen to the witnesses and the arguments of counsel.

It was, in the days before television and reality shows, a common form of entertainment. Trial lawyers were celebrities, and their jury speeches and trial strategies provided rich sources of conversation – and gossip - wherever people gathered.

Nothing has changed.

The Casey Anthony case was high drama. Suspense. Winners and losers. Everything the minions of television knock themselves out trying to invent and offer to the public.

Was it an important case? I don’t think so. Not in any legal sense. Indeed, I wager you can go down to the criminal courts building in any big city in America on any Monday morning and listen to testimony as gut retching and titillating as anything you heard in the Casey Anthony trial.

Celebrity is an ephemeral thing. Andy Warhol once predicted that everyone will be world famous for fifteen minutes. Someone will ghost write Casey Anthony’s story and her book will outsell the Bible for three or four days. Twenty years from now, no one will know who Casey Anthony is or was.

Forty years ago, I was making speeches urging that television cameras be permitted in our courtrooms. At the time, I was considered a maverick, a dreamer, an upstart bent on destroying the dignity of American courtrooms. Judges and lawyers would grandstand. Witnesses would clam up. Juries would object.

As it turned out, I was on the side of the inevitable. For all the foolishness and distraction that TV coverage may involve, I still believe it is the right thing to do. If criminal trials are to be public, and virtually everyone agrees they should be, it makes no sense to limit the audience to the few dozen seats in the courtroom.

Even in the age of television, there is still, I suppose, a lot of competition for seats in the courtroom, but now the folks on the outside are not limited to second hand accounts of what is happening.

Just about everyone in America has an opinion about the guilt or innocence of Casey Anthony. I think that is a good thing. The people have watched their system at work. They have seen a solemn judge, fiery lawyers, a sullen defendant, jurors of every disposition and behavior, and a parade of witnesses to be believed or debunked.

When the trial began, Casey Anthony was presumed innocent. The jury has acquitted her, so the presumption still stands. But an acquittal is not absolution. Juries do not forgive sins.

Wrongdoing doesn’t sit well in the human heart. Eventually, somehow, some way, some day the price will be paid. Ask O.J.

EULOGY FOR A FIGHTER

2011-06-28T21:45:00.000-07:00

JEANNETTE BRENNAN; June 28, 1902 to November 27, 1992

On the bottom shelf of the bookcase in the corner of my office at Cooley Law School in Lansing, there are five big volumes of speeches I have given, going all the way back to 1945.

But I’ve never given a eulogy before. So I really don’t know how to do this. I really don’t know what I am supposed to say.

Certainly, I want to say ‘Thank you’.

For myself, for Sally and Ray and Mary, and on behalf of mother, too, I want all of you who are with us here this morning to know how much we appreciate, and how much she appreciates, your thoughtfulness in coming here to help celebrate the sacrifice of the Mass and to help celebrate a lifetime of sacrifice and devotion to Church and family.

You honor us by your presence. You comfort us by your prayers and your concern.

Thumbing through a file of mother’s letters last night, I found one dated in 1977, shortly after Terry’s death.

It was one of those explanatory epistles I have received from my mother. The kind she used to write after we had had a good old fashioned nose to nose confrontational dialogue.

The gist of her complaint on that occasion was that I didn’t think of her as a person. I thought of her only as my mother.

Well, I got to thinking that maybe this morning I wouldn’t talk about my mother. I’d just talk to you about a person named Jeannette.

She was born in 1902.

Detroit, Michigan was then about the size of Lansing today. There was no television. No radio. No automobiles. Telephones were rare. Electricity was a novelty. Think of a kitchen without electricity. No microwave. No toaster. No refrigerator.

Her father, John Emmett Sullivan, was a lawyer. He was a good man. Loved his family. But he was not particularly successful. He moved his office a number of times, and seemed always to be waiting for that one big case or client that would enable him to do all the things he wanted to do for his family.

They lived in a rented house in Rosary Parish, in what is now known as the Cass Corridor.

Once, when she was nine years old, the gas was cut off because her father couldn’t pay the bill. There was no heat. There was no light. Sitting on the cold, dark stairway --- she remembered --- eavesdropping on her parents. And she never forgot the sense of shame and embarrassment she felt. And her determination never to suffer that kind of humiliation again. She would work. She would fight. She would never give up.

But she would never again sit in a cold, dark house.

Jeanette was a pretty girl. A good student. She had a flair for drama. And writing. In our time, she would certainly have gone to college. In 1918, she couldn’t even finish high school.

Her father died when she was still in grammar school. Her mother took in boarders to make ends meet.

At 16, she enrolled in a secretarial course at T.B. I., The Business Institute. She did well. Finished the course in record time, and was promptly hired by the school.

Before long, she found a job at Ford Motor Company, and when her older sister, Adele, was married, Jeannette became the principal breadwinner in the household, supporting her mother, her sister Gertrude, and her younger brother, Emmett.

The early 1020’s were good years for Jeannette. She progressed at Ford; became personal secretary to Mr. Gregory, a top executive who handled all of Henry Ford’s real estate holdings.

She was popular. Dated college men. Attended dances at the University of Detroit. And football games. It was then that she met and was courted by Joe Brennan, a young car salesman from the east side.

They fell in love, and during an engagement that lasted nearly two years, they made careful plans to buy a home. She wanted the security of a home. Their own house.

Joe Brennan shared the dream, and in 1925 they bought a two bedroom bungalow on a muddy lane called Elmira Street way out on the west end of town.

And so, on a Wednesday morning, they were married. She wore a suit. It was a small, family affair. They went to Boston on their honeymoon. When they returned, Joe found out that he had lost his job at Studebaker Motor Care Company.

Hang on Jeannette. Dig in, Jeannette. Work hard. Say your prayers.

Soon enough, Joe had another job. It took nearly half of his salary at the Secretary of State’s office to make the monthly payment on the land contract. But they never missed.

In August of 1926, Terry was born. Thirty-three months after, I came along. In October of that year, the stock market crashed, and America began to decline into the deepest, most devastating economic depression in its history.

Now the cute, petite, wavy haired secretary became the total wife and mother.

Through trial and error and the inventions of necessity, she learned to cook, to sew and to launder. She had no washing machine, not even the old fashioned kind that slopped clothes back and forth. She had one of those bumpy scrub boards to rub the clothes on, and a hand operated wringer that attached to the side of the washtub.

There were no automatic hot water heaters; no thermostats. Once, when she left the tank on too long, steam spewed out of the hot water hose and scalded her arms and neck. There was no 911 emergency number to call. You just screamed and screamed until neighbors rushed over to help with fumbling hands and home remedies.

There was no Blue Cross in those days either. When scarlet fever caught a child in its grip, you were quarantined for weeks. Locked in the house alone with a sick little boy, waving at your husband on the sidewalk. Throwing kisses to the younger boy who didn’t understand why he couldn’t go inside and hug his mama.

Hold on, Jeannette. Keep fighting, Jeannette. Never give up, Jeannette.

In 1933, Sally was born. In 1934, they lost the house. They had never missed a payment on their land contract with the builder. Unfortunately, the builder wasn’t making his payments to the bank. One day, the bank hung a notice on the front door.

So much for the security of home ownership.

In 1935, they bought the house on Morley Avenue. Three bedrooms and one bathroom on a 35 foot lot. To Jeannette, it was a castle. In 1937, Raymond, like his sister, Sally, was delivered at home.

In those days a big evening’s entertainment consisted of renting a 500 piece picture puzzle from the drugstore for a nickel, and working late into the night to watch a mountain waterfall take shape on the dining room table.

By the end of the decade, things were beginning to look brighter. Joe got a new job at Chevrolet. They even gave him a car to drive. The other car was left at home, and now at last, Jeannette could learn how to drive.

Then suddenly, while the family rode down West Chicago Boulevard on a Sunday morning trip to visit Grandma Brennan, the words “Pearl Harbor” blared from the radio and once again life was reduced to a struggle for survival.

Chevrolet stopped making passenger cars. Joe was let go. He was 41 and eligible for the draft. Terry would soon be old enough to fight. Maybe even little Tommy.

Hold on, Jeannette. Keep working, Jeannette. Keep praying.

Her husband got a job at McCord’s where they stamped out helmets for the army. The din on the factory floor was incessant. Every night he came home with a headache. There was gas rationing. There was meat rationing. Shoes were rationed. Somehow, she made do. Patch up. Fix up. Clean up. Hand me down.

In 1943, she had another baby. Mary was no accident. She was an affirmation of life. Of love. Of hope in a future that couldn’t be seen. Of determination to fight on. And to win.

When Terry went in the navy, she began to write. She wrote letters. She wrote poems. She wrote about the news. She wrote about the family. She gave witness to her deep and abiding Catholic faith. She gave advice and encouragement. Her words were the glue that held the family together.

When the war ended, Jeannette’s life seemed finally to be fulfilled. Her husband embarked on a new and successful career in banking. Her children went to college. Got married. Had grandchildren.

She and Joe even realized that ultimate dream of building a cottage at Rondeau Park. Now the little brown eyed girl from Cass Avenue could breathe easy. Now there was security. Laughter. A time for resting. A time for enjoying.

And then in 1958, Joe Brennan died.

Once again, she was alone. Once more, she dug down and clutched to that tenacious self reliance, the unbending personal pride that wouldn’t admit to vulnerability. That would never be overcome by misfortune.

And so her 33 years of married life were followed by 34 years of widowhood.

Competing with people half her age, she learned to support herself. She managed the modest estate of her husband’s life insurance skillfully and prudently. She reared a teen aged daughter.

And she stood like a rock of support for her married children, guiding them through troubles and tears. She kept the family together with tough love.

She survived complicated surgery. A brain aneurism. The death of her oldest son. Not as a stoic victim, but as an undaunted, scrappy fighter. Always thankful for blessings received. Always hopeful for a better day.

Hold on, Jeanntte. Keep going, Jeanntte. Keep praying. Keep working. Keep fighting. Never give up.

In the end, she outlasted her beloved Ford Mustang and the neighborhood Red Lobster. She outlived all her friends; the Tenbushes, the Gumbletons, the Drolshagens and the Garveys. And she gave us all a new respect for cheese whiz and leftovers.

She was feisty and opinionated. Full of love and brimming with romance. A heart full of girlish imagination and beautiful, fanciful dreams was never completely overcome by a head full of numbers and practical rules for living.

She was the Scarlet O’Hara of the rust belt. The Katherine Hepburn of the Altar Sodality.

Jeannette Brennan was my mother. She was also my friend.

I knew her as a person. I knew her as an old lady who was still part young woman and part little girl.

And I knew her as a fellow Christian, for whom, today, the words of Saint Paul to Timothy seem most fitting:

“As for me, I am already poured out in sacrifice, and the time of my deliverance is at hand. I have fought the good fight. I have finished the course. I have kept the faith. For the rest there is laid up for me a crown of justice, which the Lord, the just Judge, will give to me in that day. Yet not for me only, but also for those who love his coming.”

DON'T GET ME WRONG

2011-06-27T05:58:00.000-07:00

I’m not saying that the New York Legislature did something it should not have done.

The people of the Empire State are guaranteed a Republican form of government by the United States Constitution. They are governed by a popularly elected legislature, and legislators always do what they think will get them reelected.

A republic is not the same as a democracy.

The people of New York were not asked to vote on same sex marriage. Maybe they would approve it, maybe they wouldn’t. But it doesn’t matter. In a republic, the elected representatives of the people make those decisions. In 2012, the people of New York will have a chance to replace anyone they think does not represent them well.

No doubt there will be some hotly contested elections in New York next year, with lots of shouting and name calling on both sides.

What there will not be is calm, intelligent, rational dialog among supporters and opponents of same sex marriage.

The vast majority of the people of New York are heterosexual. Indeed, the vast majority of human beings on this planet are attracted to members of the opposite sex. It is simple and substantially universal human nature.

Anthropologists tell us that every known human society has had some form of mating ritual or custom. Human beings are instinctively monogamous, and typically live in family units. It is the natural way to procreate, nurture, and educate children.

At the same time, homosexuals have been seen in many cultures for centuries. Sodomy was once called ‘the sin of the Greeks’ because of its prevalence in that ancient kingdom.

But the demand for same sex marriage, as a recognized legal relationship is something new. It is part and parcel of the effort to establish homosexual conduct as a legitimate and equally appropriate and acceptable way for human beings to live in society.

The ramifications of that change in our culture are considerable and have not been fully explored.

For example, our marriage laws forbid unions between persons within specified degrees of consanguinity. These laws are the product of human experience, and reflect the fact that the progeny of such unions are at risk of severe mental and physical affliction.

But same sex marriage will not produce natural offspring. Don’t the consanguinity restrictions become meaningless in those cases?

If the only test for the legitimacy of a sexual relationship is that the participants be consenting adults, what will be the logic for prohibiting unions between close relatives? Mother-daughter? Father-son? Brother-brother or sister-sister?

Indeed, what will be the logic in restricting marriage to unions between only two people? Why not three, four, five, or a dozen consenting adults?

When I ask those questions of proponents of same sex marriage, they look at me with perplexity . Their response is usually something like, “No one wants that. It would never happen.”

Forty years ago, they would have said the same thing about homosexual marriage.

The thing about our republic is that it is not a democracy. It is an aristocracy of the interested. The outcome of an election is not just a matter of taking a poll. Militant, vocal, committed minorities set the agenda and affect the outcome of our elections.

The prevailing public sentiment is always passive, permissive and timid. In the face of name calling, mob demonstrations, and media hype, the average citizen shrugs his shoulders and says something like, “Let them have what they want. It’s no skin off my nose.”

The opponents of same sex marriage in the New York legislature argued that it violates God’s law. They were shouted down as bible thumping radicals. They tried to show that homosexual unions would increase venereal disease, and they were scoffed at. Arguments based on natural law, history and tradition were likewise ignored.

The State of New York has a large homosexual population. They have effectively redefined the word ‘gay’ so that it no longer simply connotes light heartedness, and care free happiness. Especially in the big cities, there are gay bars, gay parades, gay publications, gay public officials.

If the majority of New Yorkers don’t approve, at least they don’t disapprove. Live and let live is the common sentiment.

What no one likes to talk about or think about in all of this are the long range consequences of a homosexual culture. The first and most obvious is a declining population.

Proponents will claim that lesbian women can have babies through artificial insemination, and that fatherless and motherless homes are commonplace due to divorce and illegitimacy.

And anyway, aren't we in danger of overpopulating the planet?

True enough of course, but are those things really good for society? No one really knows what kind of a nation we will become when and if the traditional American family is no longer the norm or even the ideal.

A people who are not reproducing themselves are a dying culture. In the long term, the planet will be populated by humans who have learned the lessons of history and who live in a stable, natural and nurturing environment.

We worry about global warming and about the impact of carbon emissions on our atmosphere. We fret about endangered species of plants and animals.

Perhaps it is time to ask ourselves if our culture is also in danger of pollution.

A LITTLE HELP

2011-06-14T19:28:00.000-07:00

I have been meaning to write a blog about the antics of Congressman Weiner.

No need. My daughter, Marybeth Hicks, who writes for the Washington Times, has said it all. (By the way, her third book, entitled "Don't Let The Kids Drink The Kool-Aid: Confronting the Left's Assault on our Families, Faith and Freedom" comes out August 22 from Regnery Publishing. Don't miss it!)

Her column appears in Wednesday's paper. Here it is:

It must be said: Rep. Anthony D. Weiner is what’s wrong with America today.

Once again, when confronted with behavior that clearly speaks to the character of a man’s heart, we’re being asked to accept that he’s not entirely responsible for his actions because of some unspecified “disorder.” (Maybe narcissism, maybe obsessive-compulsive disorder, maybe chronic nerdism; hard to say without a psych assessment.)

There was a time - in low-tech America - when actions like Mr. Weiner’s would have taken place in a park and involved a trench coat. But there I go again, longing for a simpler era when a pervert was a pervert and not necessarily a guy with a condition.

As it is, now that Mr. Weiner has used Twitter to indulge his icky sexual proclivities and yet refuses to resign from his congressional seat, we’re again confronted with the new American reality: You don’t have to suffer the consequences of your actions.

Not just that. Even if you’re as skeevy as yesterday’s sweaty socks, people who like your politics will tolerate your creepiness. To wit: Mr. Weiner maintains the support of the president of the New York chapter of the National Organization for Women, Julie Kirshner. She claims that just because she has learned her congressman is “a 14-year-old boy” doesn’t mean he doesn’t support feminist causes.

Sorry, Ms. Kirshner, but you’re making a big mistake. You can’t simply write Mr. Weiner’s antics off as immature for the purposes of political pragmatism. At least, not without further eroding our national ethos.

Our habit of detaching a person’s behavior from his character is having a deleterious impact on our country, and, at the risk of using hyperbole, is going to be our ultimate undoing. Maybe not in this specific case, as it’s likely the two-week leave of absence that has been granted to Mr. Weiner will turn into an early retirement with well-wishes for a “full recovery.”

No, it’s not Mr. Weiner, but the habit of moral relativism he represents that scares me. The now-familiar pattern - heinous immoral behavior, indignant denial, public humiliation, victimization through disease - is likely a manifestation of our decades-long infatuation with unconditional self-esteem.

Americans are so focused on feeling good about themselves, no matter what abhorrent behavior they put on display, they no longer exhibit the shame that ought to come with wrongdoing. You might say, well, Mr. Weiner must have felt shame because he tried to lie his way out of the mess he created for himself. That was only an effort to cover his … tracks.

No, if he feels shame, he quits Congress. Simple as that. A person of good character knows a congressman would never, could never, do the things Mr. Weiner has done and remain in office. It’s insulting to the office and the constituents he serves, not to mention humiliating for his family and friends.

Which is why this incident doesn’t prove Mr. Weiner is “a 14-year-old boy,” it proves he’s a man without a conscience, and this is what’s wrong with America.

The bad news? It’s only going to get worse.

We already know the next generation of Americans is growing up without a proper moral compass. In its biennial survey of teenagers, the Josephson Institute of Ethics in 2010 once again established the alarming disconnect between the immoral and unethical behavior of our teens - which it describes as “entrenched” - and their positive self-esteem. More than 90 percent say they feel good about their moral and ethical selves despite habitual lying, cheating and stealing.

Can’t wait until they run for Congress.

To be fair, everyone makes mistakes. Actually, to be more accurate, everyone sins. Guilt and remorse are how a well-formed conscience tells us we’ve sinned, and repentance is how we recover and make amends.

But sin has consequences, and in Mr. Weiner’s case, those consequences must be more than therapy.

Reprinted with permission of the Washington Times and the unconditional approval and admiration of her father.

FIRST WOMAN

2011-06-12T22:10:00.001-07:00

In 1983, the New York Times editorial page carried a reference to the “nine men” on the United States Supreme Court.

It earned them a feisty letter to the editor from Sandra Day O’Connor, who at the time had been a Justice for two years. She said that if the President is called POTUS and the Supreme Court given the acronym SCOTUS, she should be known as FWOTSC. Meaning, of course, First Woman On The Supreme Court.

And, to be sure, she was.

On July 1, 2005, after nearly 25 years on the high court, Justice O’Connor announced her intention to retire, effective when her successor would be confirmed. She was succeeded by Samuel Alito on January 31, 2006.

Since then, she has been remarkably busy, teaching, speaking, writing, and occasionally sitting as a lower court federal judge.

One of Justice O’Connor’s pet projects is to promote the improvement of the judiciary, specifically by advocating what is commonly known as ‘merit selection’ of judges.

Typically, merit selection plans are patterned on a law adopted some years ago in Missouri. In fact, the ‘Missouri Plan’ has become short hand for a system in which the Governor appoints judges from a list of candidates nominated by a blue ribbon panel of citizens.

Supposedly, these blue ribbon nominated judges are a cut above the usual elected judges. The Missouri Plan gives the public a chance to oust unpopular judges in a so called ‘retention election.’ The ballot says, Should Judge X be retained? YES or NO.

Justice O’Connor is coming to Michigan next week to lend her support to the efforts of a local Task Force, which is trying to revive the oft defeated efforts to install merit selection in the state.

The people of Michigan have repeatedly expressed their preference for electing judges. Whether Justice O’Connor can light an opposing fire remains to be seen.

Frankly, I would be more interested to know what Justice O’Connor thinks about ‘merit selection’ for the United States Supreme Court.

She has had some things to say which suggest that she is not a fan of the present system.

On July 21, Justice O'Connor spoke to a 9th U.S. Circuit conference and blamed the televising of Senate Judiciary Committee hearings for escalated conflicts over judges. She expressed sadness over attacks on the independent judiciary.

In May 2010, she warned female Supreme Court nominee Elena Kagan about the "unpleasant" process of confirmation hearings.

Certainly the selection of United States Supreme Court Justices can hardly be called non-partisan.

Superannuated jurists hang onto their seats waiting for a President of their party to be elected before retiring. Candidates for the Presidency run for office campaigning on promises to appoint this or that kind of judges. The United States Senate convenes a circus of committee hearings to probe, question, expose and often discredit Supreme Court nominees.

If a select committee of citizens is needed to nominate state court judges, why is it not desirable at the highest level? Who vets the people being considered for appointment?

Recently a group of law school professors and deans put together a proposal for reforming the United States Supreme Court. Got me to thinking. Isn’t it time for us to have a non-partisan Supreme Court in America?

Isn’t it time to stop naming Justices because of their party affiliations, partisan connections and political preferences?

The job of the courts is to interpret the constitution and laws so as to give effect to the intention of the people who adopted them. Courts aren’t supposed to make new laws, declare new rights, and ‘modernize’ the constitution.

Judicial service is a high and noble calling. The process of selecting judges should be professional, solemn and free from partisanship.

Here’s what I propose:

The Supreme Court shall consist of the nine present members and their successors, who shall be appointed by the President without confirmation by the Senate, for eighteen year terms, from among a list of five persons nominated by a majority of the Chief Justices of the highest appellate courts of the several states.

This non-partisan amendment would insulate the court from a Rooseveltian court packing. It would provide a truly ‘blue ribbon’ committee of state chief justices who know the law and the constitution, and who are familiar with the leading members of the bar.

It would moderate the present incestuous tendency to appoint law clerks and judges from a select few law schools which are not representative of the people of America or the legal profession in our country.

Sandra Day O’Connor was born in Texas, educated in California and served as a legislator and as an appellate judge in Arizona. While her alma mater, Stanford University is a prestigious institution, it’s a long way from the Atlantic seaboard.

She would be a powerful spokesperson for an effort to reinvigorate the principle of federalism in the selection of Supreme Court Justices.

What say you, Madam Justice?

EULOGY FOR CANHAM

2011-06-06T05:11:00.001-07:00

Mary Ellen asked me to say a few words about Jim.

And I suppose at a gathering such as this, most folks expect to hear a eulogy praising the deceased, remembering his finer qualities and expressing our sense of loss.

But if you knew Jim Canham, and I guess I knew him about as well as anybody, what he would really expect is to be roasted.

That’s the way he was.

Insulting people was his favorite way of showing affection. You knew he really liked you when he called you a dipstick.

Jim Canham was bigger than life. His voice was modulated at two levels. Loud and louder.

He was often wrong, but never in doubt. And he was smart. Very smart. Certainly a lot smarter than I am. He knew everybody’s name, and where they lived, and where they came from, and what they did for a living, and how many times they had been married. And what their golf handicap was.

A voracious reader, Canham was always well informed. About the law. Politics. Religion. Sports. Movies. History. Current events. He knew it all. And what he didn’t know, he made up. And then believed it.

He was the leader, the chairman, the CEO, the boss of well, just about everything. And everybody. What are we gonna do? Ask Canham. Where are we gonna go? Ask Canham. Who’s gonna be there? Canham knows. Ask him.

A few people called him Jim. A few more called him Judge. But mostly people called him Canham. Even Mary Ellen called him Canham sometimes. That’s when you knew he was in the dog house.

He liked people. He loved people. He was gregarious and he was generous. He gave me my first set of golf clubs. Haig ultras. I used them for years. He told me how to use them. And he never hesitated to correct me if I didn’t use them properly.

But he was generous. I remember once when we played golf together, he even let me drive the cart.

Actually, he always insisted on driving the cart because of his deaf ear. I never could remember which ear was the deaf one. So I never knew if he insisted on driving because he wanted to hear me, or because he didn’t want to hear me.

Canham and I were law school classmates. Later we were colleagues on the Wayne County Circuit Court. Our wives are the dearest of friends, so Jim and I were often traveling companions, drinking buddies, golfing buddies, tennis partners, gin rummy partners, and coconspirators of one kind or another.

But we never won. Never won at anything.

We played in the Green Coat a number of times. Always finished back in the pack.

Canham was the chairman of the tournament. He’d be fretting about whether the bananas were too ripe or not ripe enough. Whether the so and sos had the right table at the banquet. If it would rain, or if we needed rain. Or if what’s his name had invited the same sandbagger he brought last year.

Invariably by the end of the second day, he couldn’t putt a golf ball into an open man hole, and he would be longing for Monday to come so he could play with his usual pals.

It got so bad, I finally bought a condo and joined the club, so I wouldn’t have to be his partner in the member-guest tournament. Then he decided we had to play in the member-member tournament.

I wrote a blog about him a little more than a year ago. He had already lost more than fifty pounds, and he knew that his time had come. He resigned himself to it. He didn’t like being sick, being helpless. Even his dog Angus was dying, but Canham could still laugh.

He went out slow and hard. Lots of time to say goodby. Lots of time for tears. Lots of time for self pity or regrets. Canham did neither. He saw his friends, and made new ones. He’s the only man I know who would hit on a hospice nurse. He loved that line. It made him laugh. He never lost his sense of humor.

One of the last times I saw him, he was flat on his back on the kitchen floor. Mary Ellen called me and I ran over to help get him up. We struggled awhile, and finally the nurse came. She knew what to do, soon had him in a sitting position, and asked him what happened.

I saw that old familiar twinkle in his eye when he answered, “Mary Ellen pushed me.”

Truthfully, for that last year, Mary Ellen not only pushed and pulled him. She dressed and bathed and fed him and waited on him hand and foot. She was the one constant love of his life. She gave him sixty years of devotion and sacrifice. Even put off joining the Emmet County Women’s Republican Club.

One of my favorite movies is “Waking Ned Devine.”

There’s a scene where Jackie O’Shea is speaking about his friend Michael O’Sullivan, and he says what many of us here this afternoon would like to say ourselves:

“Jim Canham was my great friend. But I don’t ever remember telling him that. The words that are spoken at a funeral are spoken too late for the man who is dead. What a wonderful thing it would be to visit your own funeral. To sit at the front and hear what was said, maybe say a few things yourself. Canham and I grew old together. But at times, when we laughed, we grew young. If he was here now, if he could hear what I say, I’d congratulate him on being a great man, and thank him for being a friend.”

I’ve thought about that scene many times since Jim Canham died. And I’ve wondered just what he would say to us. Now. Today. If he were standing here.

His life was full of contradictions. Of highs and lows. Of great achievements and loud crashes. Of public attention and private solace. He was the quintessential human being, a mixture of confusion and confidence, of greatness and banality, success and failure, adversaries and admirers.

But no one would deny that he was his own man.

And I suspect that his parting speech to us would be cast in the words of a ballad he loved.

I can close my eyes and hear him singing it:

Regrets, I’ve had a few,
But then again, too few to mention.
I did what I had to do,
And saw it through without exemption.
I planned each charted course;
Each careful step along the byway,
And more, much more than this,
I did it my way.

NEVER TOO LATE

2011-06-01T11:29:00.001-07:00

Mark it down. It’s never too late to learn, never too late to change your mind.

That truism came to the fore a week or so ago when my friend Don LeDuc, who succeeded me as President of Cooley Law School, sent me a thick book entitled “Every Vote Equal: A State Based Plan for Electing the President by National Popular Vote.”

Like most Americans, I have always been conflicted about the process of electing our President. While the Electoral College sounds arcane, still it was established by the Founders, and that gives it a leg up for most of us.

Americans are wary of amending the Constitution, and the politicians who have the power to propose amendments are also the beneficiaries of the present system. So the status quo is what else? The status quo. What is, is.

On the other hand, along with nearly 75% of my fellow Americans, I think the President of the United States should be elected by a majority of the voters of the United States.

Now comes a web site, www.NationalPopularVote.com with a prestigious bi-partisan advisory board, which announces that we don’t need to amend the constitution. All we need is enough state legislatures to agree to popular election and it’s a done deal.

The book is 894 pages of solid information. Historical. Statistical. Legal. It makes a strong case.

First off, there is the business of how Presidential elections are run these days.

We have all heard about the red states and the blue states. New York is blue. California is blue. Texas is red. In fact about 32 of the 50 states and the District of Columbia are solidly and ‘safely’ either red or blue.

That leaves 18 ‘battleground’ states. Ninety-nine percent of the money spent on political advertising gets spent in these states. In New Mexico, Nevada, Ohio and Florida, for example, the political parties pay out more than four dollars a vote on their Presidential campaigns.

The State of Washington sees about 20 cents a vote and eleven other states get less. In 23 states neither political party spends anything.

If you are a blue voter in a red state or a red voter in a blue state, you might as well stay home. The candidates won’t waste their time or their money on you.

What emerges with the Electoral College is not the bastion of states’ rights I always thought it to be. Instead, what we have is a system in which the big money boys from Wall Street and the Union Halls compete to buy electoral votes in a third of the nation, while everyone else gets to stay up late on election night and see how the auction turns out.

In the 221 years of our history, there have been four Presidents who didn’t win the popular vote. About a dozen more losers could have won, but for a few votes here and there.

The Constitution intended the Electoral College to be a deliberative body. What has evolved over the years is something different. Presidential electors are required, or at least expected, to vote for the winner in their state everywhere but in Maine and Nebraska.

Still there have been eleven “unfaithful” electors who jumped ship and voted for somebody else. Eleven out of 21,915 isn’t very significant, except to prove that it is possible.

Which brings me to my latest brainstorm.

What if one of the Republican hopefuls were to make popular election of the President his major issue?

What if he promised to ask all electors pledged to him to vote for the candidate who wins the popular vote?

What if he says, “I will not take the oath of office unless I am elected by a majority of the American people?”

And what if he challenges his opponent to make the same promise?

That would sure stir things up in the White House.

Not to mention the New York Times.

HORSE AND CARRIAGE

2011-05-29T18:50:00.000-07:00

The rehearsal dinner was at Buckner’s Brewery, which backs up to the twelve foot high levy that keeps Cape Girardeau, Missouri from being a lake.

The locals don’t seem to notice. I guess when you are born and raised within earshot of the mighty Mississippi you get used to it.

But it was all very novel for the Brennan and Schafer clans, which assembled from Michigan, Illinois and Florida to celebrate the marriage of Thomas E. Brennan III to Meghan Elizabeth Jones.

What are the chances that a young man who grew up in East Lansing and now lives and works in Grand Rapids would meet, court and marry a girl who was born in Cape Girardeau and worked in Shaumburg, outside of Chicago, Illinois?

Mighty slim in my day.

Odds were you’d marry someone who was born less than twenty-five miles from you. A school mate. Your pal’s sister. A bridesmaid at your brother’s wedding.

But somebody from some place you never heard of? Not likely.

And we weren’t surrounded by men and women in their twenties and thirties for whom the prospect of marriage and family is seen as an aberration, a burden, a detour on the road to happiness. At best an interruption of the good life.

Frank Sinatra sang it for us: Love and marriage go together like horse and carriage. Taking up casual residence with a person of the opposite sex was a criminal offense known as lewd and lascivious cohabitation. If you were open and notorious about it, it might just become a common law marriage.

The idea of advertising for companionship in the personals column of the classified page was considered a sign of discouragement, if not desperation.

All that has changed. Now there’s match dot com.

And that’s how they met. Shared religion. Shared politics. Shared family experience and values.

Pictures exchanged. Emails flew back and forth. Laughs were shared. Opinions expressed. Phone calls and Skypes turned acquaintances into friends and friends into lovers.

By the time they met face to face they knew each other pretty well. All it took was a few kisses to seal the deal.

He asked her father for her hand, bought her a ring and proposed. She said yes and immediately set about planning the wedding.

No big problem. That’s what she does for the Marriott chain. Plan weddings and such.

Watching the merger of the Brennan and Jones families has been an exhilarating exercise for me. My son, Thomas E. Brennan, Jr., the retired judge, father of the groom and host of the rehearsal dinner, expressed it this way in his welcoming remarks:

“Frank and I are already good buddies even though we have little in common! He runs, I walk. He’s a fisherman, I’m a golfer. He plays racquetball, I play hockey. He knows computers, I know the law. He’s a Tiger, I’m a Spartan. He’s a gourmet cook, I love to eat. He says, “ya all” and I say “eh?” And he’s a grandpa and I’m not .. yet.

But here’s what we have in common: a shared Catholic faith, fantastic spouses, beloved children, similar politics, and a taste for beer! I really like this guy! In his kitchen, right above the stove, in large stenciled letters is his mantra, 'It’s All Good.' So I’d say we’re both full of happiness.”

The wedding at Saint Vincent’s Church was spectacular: a bevy of beautiful bridesmaids, a cadre of spiffy groomsmen, a couple of giggling flower girls, a stunning bride and grinning groom presided over by a priest who has known the Jones family since Meghan was a toddler.

Then came the reception, about an hour away at a vineyard set above the lush Missouri countryside, the tour de force of a professional event planner who just happened to be the bride.

It all took place on May 21, 2011. That was the day Harold Camping predicted would be the end of the world. For Tom and Meghan, it was the beginning.

But 270 miles to the West and twenty four hours later, it was indeed the end of the world for over 120 people in Joplin, Missouri.

The ferocious power of Mother Nature turned that town into rubble, snatched babies from their mothers’ arms, threw a three hundred pound patient out of a hospital window and sucked a high school graduate out of the roof of his car.

The juxtaposition of the predicted Rapture, the leveling of Joplin and the wedding of my grandson has sparked a kind of philosophical melancholy in this old judge.

Life ends when it ends. We know not the day nor the hour. Our faith tells us to live each day as though it is our last, leaving no debt unpaid nor duty undone.

Still, it brings a flush of warmth to see young people, good young people with their heads screwed on properly and their hearts in the right place stepping out together into the sunrise of a new day and a new life. Excited. Hopeful. Unafraid.

Makes me think this old earth’s going to last a while longer.

SEVEN ZIP

2011-05-17T20:35:00.000-07:00

It didn’t take them very long.

Earlier today, the Supreme Court of Michigan decided the case of Attorney General v Clarke.

It rendered a per curiam opinion. Per curiam. That means, “by the court.’ In other words, unanimously. All seven Justices agreed to dismiss the Attorney General’s request to oust Judge Clarke from the Lansing District Court.

In the process, the Court repudiated the 1983 case of Kelley v Riley, on the ground that its controlling opinion is inconsistent with the constitution of the State of Michigan.

It was front page news in the Lansing State Journal, which noted that the Court consists of four Republicans and three Democrats, and that I had told them a party line vote would demean the Court and make a mockery of the rule of law.

Since they didn't decide to remove Judge Clarke, they didn't have to answer the question of whether they have the power to do it. They didn't have to come face to face with the plain words of the constitution which say they don't have the power to remove judges.

No surprise. Also no surprise that they included a paragraph defending their right to answer that question either way if it evercomes up. Judges don't giveup the gavel very easily, even to the sovereign people.

Bottom line, the case is closed. Judge Clarke stays on the bench. The Good Lord was willin' and the creek didn't rise.

So the Honorable Hugh Clarke can get back to concentrating on the miscreants, the landlords, the tenants, and the hapless DUI defendants who make his job so challenging. And begin to plan his 2012 election campaign.

And I can get back to being a bogie golfer, a harried homeowner, an itinerant grandparent, and a concerned citizen of these United States.

Still, I have to admit that donning the familiar blue suit, hauling a bulging brief case to the courthouse and jousting with the folks in the black robes was an exhilerating exercise for this old warrior.

Nice to know there's still a bit of fire in the belly that isn't just heart burn from eating jalopenos.

WELCOME BACK

2011-05-10T19:06:00.000-07:00

I had not argued a case in the Michigan Supreme Court in more than fifty years.

Everything was different. The Courthouse. The security precautions. The people, of course.

And TV cameras, for heaven’s sake. I had been a voice crying in the wilderness a half century ago, urging television in the courtrooms. Now there it was. And I would be on it.

For folks who have never seen a Supreme Court case argued, take a look at:

http://cst.clickstreamtv.net/mpi/cst.html?account=sbm&clip=050311_msc_54a&flashVersion=10&playlist=05_03_11_msc_54a_judge&realVersion=&route=1&cstSessionID=971282&sessionID=M20110510128871BE0F4&server=&speedZone=300&wmpVersion=9&referenceID=&emailCampaignID=&recipientID=&fileID=

Despite my years on the bench, I confess that I was nervous. Chief Justice Bob Young graciously greeted me with “Welcome back.” I was so up tight, I didn’t thank him.

Bad start.

Afterwards, a generous email from an old friend gave me occasion to size up the experience. I told him I was having “litigation remorse.” I should have said this. I should have said that. Why didn’t I think of this? Why didn’t I think of that?

He reminded me that the best jury speeches are addressed to the ceiling of a lawyer’s bedroom on the night after the trial.

Still, mulling over the questions asked by the justices, I can’t help but think that some of them simply didn’t understand the gist of my argument.

Chief Justice Young, for example, asked if I was claiming that the Court could not remove an imposter.

I wish I had answered by pointing out that an imposter is not a judge, and that removing an imposter is not removing a judge.

Suppose, for example, that a judge goes on vacation, and while he is away, his jealous, identical twin brother, dons the robe and starts holding court. The imposter can’t make enforceable decisions. Can’t legally put people in jail. Anyone can challenge him. You don’t need a Quo Warranto action. And when you take the gavel away from him, you are not removing a judge, you are exposing an imposter.

Justice Marilyn Kelly put the case that someone other than Judge Krause might have won the District Court election in November 2010. If Judge Clarke tried to stay on the job after January 1, couldn’t the Court remove him and install the newly elected judge?

I wish I had responded by telling her that when I was Chief Justice there was a judge who kept coming to the office after he lost the election. I told him to clean out his desk and go home. It’s not rocket science. You don’t need a court order to remove somebody from an office they no longer hold.

Justice Zahra wondered what would happen if the new Governor had also appointed someone to the job. Would the Court then have the power to remove Judge Clarke?

Again, I wish I had answered that there is only one judgeship at issue. If there are two claimants, one of them is a judge and the other is not a judge. You can’t remove the judge because the constitution forbids it, and you can’t remove the other claimant because he doesn’t occupy an office from which to be removed.

I did try to remind the Court that even the Attorney general agrees that Hugh Clarke is a sitting District Judge. But I should have pointed out that their own Court Administrator lists Clarke as a judge, monitors his workload, and keeps his judicial statistics.

Arguing the case for the umpteenth time to my bedroom ceiling, I can hear myself asking the justices the crucial question, If the words,’The Supreme Court shall not have the power to remove a judge’do not mean that you can’t remove a judge, what exactly do they mean?

The ceiling doesn’t answer. Maybe the Supreme Court of Michigan will.

ANNIVERSARY REFLECTIONS

2011-04-26T20:30:00.000-07:00

It’s that time of year again. On April 28 Polly and I will celebrate our sixtieth wedding anniversary.

I used to wonder if we’d make it to fifty. I’d see all those blurbs in the Sunday papers about folks celebrating their fiftieth anniversaries. Man, they were old. Shriveled up, superannuated relics with canes and aluminum walkers, crooked ties and toothless grins.

Would that be us?

And sixty? Good Lord, does anybody last that long?

Apparently they do. I looked in the paper a couple of weeks ago and there were more sixtieth anniversaries than fiftieths. And doggone if most of them didn’t look pretty damn good.

O.K. So maybe it’s my perspective.

Sometimes when I tell people I have been married for sixty years, they ask in disbelief, “To the same woman?”

Hell no, I say. She’s not the same woman at all. She used to be a pretty young girl, now she’s a beautiful old lady.

I guess that’s part of having a long marriage. You both keep changing. You have to keep falling in love, keep learning about each other. Keep committing and recommitting to the contract.

We’ve been married four times. At age 21, age 46, age 61 and age 71. Same ceremony. Same priest, except for the third time.

We’re not getting married again this year. Thought it might be kind of fun to live in sin for a while.

Son Bill was here for a few days. He brought a stack of DVD’s made from home movies, one of which was of Polly’s sixty-fifth birthday party.

What a treasure.

A black tie dinner at Walnut Hills Country Club with five of our six children and their spouses, except for Ellen who was still single. Son John was living in Minneapolis, and sent his regrets and good wishes.

The rest of them took turns ‘roasting’ the Guest of Honor. It was hilarious then and just as knee slappingly funny today. Except that now there is a touch of bittersweet nostalgia mixed in when I see how we all looked fifteen years ago and realize that yesteryear is only yesterday.

I suppose there are people who have been married a long time, but don’t have children. Or they have one or two kids who moved to California thirty years ago and never came back. But for me it’s all about family. Family meals. Family worship. Family pride. Family fun. Family traditions.

Forty years ago I was helping son Bill, then a pre-teen, to do his Christmas shopping. I stumbled upon a pair of brown jodhpurs. You know, those funny looking English riding breeches. They had been marked down from about thirty dollars. Marked way down. To 19.95. To 9.95. To 4.95. To 1.95. And finally to ten cents! Billy bought them for his sister Peggy.

Needless to say, Christmas morning brought peals of laughter about Peggy’s gift.

Well, the next year, didn’t Peg give them back to Bill. And thus began the great jodhpur exchange. At every large family gathering, somebody gets the riding breeches. They now display an embroidered history of the presentations, which include the traditional trying on and posing for pictures. And of course, the infamous price tag is still attached.

It’s especially challenging when a couple of grandsons who are built like NFL line backers try to squeeze into those ten cent trowsers.

But somehow they do. Because it’s tradition. Because it’s family.

Silly stuff to be sure.

But it’s the stuff that sixty year marriages are made of.

GETTING OUT OF DEBT

2011-04-13T11:57:00.001-07:00

I see where President Obama is proposing 4 trillion dollars of debt reduction to compete with the Republicans' push for 5 trillion in spending cuts. Of course, true to his commitment to class warfare, the President’s plan includes taxes on the hated rich people.

They have until May 16 to agree on something. That’s when the 14.6 trillion dollar federal debt limit will have to be raised, if we are going to borrow enough money to pay the obligations that will come due by then.

In short we have to borrow money to pay back money we have already borrowed.

Make sense to you?

Not to me. It’s like owing $10,000 on your VISA card and paying it back by putting it on your MasterCard.

Du?

The federal government, like everyone else, can only get money in one of four ways. It can beg, borrow or steal. Or it can get money the old fashioned way. Earn it.

You and I have to balance our budgets. What comes in must not be less than what goes out. Money that you borrow isn’t income. It is the absence of income. It’s called going in the hole.

You gotta pay it back. And the worst part is that until you do pay it back, the interest piles up.

I hate paying interest and penalties. It always makes me feel like somebody has a gun to my head. In the case of our national debt, the gun is often held by other nations.

How much is this tribute we are obligated to pay to our creditors? Let’s see. A million has six zeros. A billion has nine zeros. A trillion has twelve zeros. So one percent of a trillion – take off two zeros – is a number with ten zeros. Ten billion.

So if we are paying three percent interest on the 14 trillion dollar national debt, we are ponying up 30 x 14 or 420 billion dollars a year in tribute.

That’s just the interest. How much of the principal do we have to come up with?

In December of 2008, the national debt was 10 trillion. Today it’s 14 trillion. That’s a forty percent increase in just over half of Barack Obama’s first term.

Should we worry about it? Will it be a burden on our children and grandchildren? Of course it will. So how can we pay off the debt and get our government on a pay as you go system?

Easy enough. The constitution empowers Congress to coin money. In fact, it is more than a power. It is a duty. Just like setting the standard of weights and measures.

Can we crank out enough gold dollars to pay off 14 trillion in debt? Not hardly. Even at $1,400 an ounce, we probably don’t have enough in Fort Knox. And just shipping that much hard money to our creditors would be a monumental task. Anyway, who would want to make a monthly mortgage payment with gold coins?

But the constitution doesn’t require gold, and doesn’t define the word “coin.”

So how about this: the feds start issuing electronic money. Plastic cash cards loaded with 100, 1,000, 10,000 or 100,000 dollars. Easy to use. Easy to carry. Can’t be counterfeited. Program them with an LED window that displays the balance on the card when you pinch it.

The U.S. dollar is the international reserve currency. That means other countries use our dollars to pay each other when they do business. Plastic cash cards would work as well if not better than federal reserve notes.

Would it cause inflation?

Maybe. But sooner or later the fiddler has to be paid.

WHOSE CHOICE?

2011-04-06T16:16:00.001-07:00

An exchange of emails with a friend got me started on this.

The abortion issue, labeled Pro Life or Pro Choice by the interest groups, remains the most significant cultural divide in American life. Viewed by both sides as a moral issue, it leaves little room for anyone to be 'moderate.'

I have always approached the question as a legal issue. Admittedly, my personal aversion to abortion may influence my legal opinion, but, in the tradition of the judiciary, I try to think it through without reference to my subjective opinion.

Prior to 1973, every state in the American union had some kind of legislation on the subject of abortion. Both criminal statutes and laws regulating the practice of medicine prohibited assisting or causing a woman to miscarry.

So far as I have seen, these laws were all addressed to the person causing the miscarriage and not to the pregnant woman.

In the decade prior to 1973 there were efforts in several states to liberalize the abortion statutes. Most would make it legal for a woman to have an abortion in case of rape or incest, or if the pregnancy endangered her life or physical health.

The entry of the Supreme Court of the United States into this sensitive moral and political thicket was, in my opinion, a serious departure from the proper constitutional role of the court. The opinion, written by Justice Harry Blackman, has been criticized from both left and right.

Much has been said and written by scholars on both sides. No one has ever suggested that any citizen who voted to ratify the U.S. Constitution or any of its amendments had the remotest intention to restrict the power of the states to legislate with respect to abortion.

Roe v Wade was an unquestioned usurpation of legislative power by the Supreme Court. It would be easy enough for the court to return the matter to the state legislatures, but unhappily, the Pro Choice people are dead set against allowing the voters to have any Choice in the matter.

The real mischief of Roe v Wade is that it legalizes abortion as an alternative method of birth control. Blackman said the decision should be left to the woman and her doctor. That line was supposed to suggest that abortion is a medical procedure, performed for medical reasons.

The fact is otherwise. Doctors who perform abortions make their living performing abortions. Pregnant women are their clients. Abortion doctors are hardly a restraining influence. If anything, they encourage the procedure that puts money in their pockets.

The result is that a healthy fetus has less protection in America than a healthy liver or gall bladder. No medical necessity needs to be shown. Abortion is completely optional. Like a haircut or a pedicure.

So there it lies. America has a liberal abortion culture, not by Choice, but by the dictate of unelected judges. The long range political consequences, especially as they impact the declining, morbid birth rate in the United States will probably have to play out before the Justices undo what they have wrought.

That's the way I see it.

THE BLOODY QURAN

2011-04-02T20:15:00.000-07:00

Today’s Wall Street Journal carries this story on page A12:

KABUL—A frenzied mob incensed by a Quran-burning-ceremony
in Florida overran the United Nations office in northern Afghanistan’s
largest city on Friday, killing at least seven foreigners and several
Afghans, U.N. and Afghan officials said.

There’s not a lot that can be said in defense of Pastor Terry Jones who came up with the idea of promoting “Burn a Quran Day” as a way of dramatizing opposition to the spread of Islam.

Criticism of his idea came from all over. Politicians, military commanders, civic and religious leaders all joined to condemn it and Jones himself ultimately backed off. For a while.

But he just couldn’t leave it alone. On March 20, in a small Gainesville, Florida church known as the Dove World Outreach Center, Jones’ colleague Pastor Wayne Sapp lit a kerosene soaked copy of the Quran with a barbeque match and 30 people watched it burn.

The insane, fanatic and tragic consequences were predictable. As a matter of fact, one of the very reasons why Jones and his ilk are so opposed to the Quran is that it has been interpreted to justify and even encourage bloodthirsty enforcement of Islamic law.

So now Pandora’s box has popped open. Muslim leaders call for the prosecution of Jones as a ‘war criminal.’ Anti-Western, anti-Christian and anti-American sentiment is bubbling up all over Afghanistan, and no doubt it will spread throughout the Arab world.

And here in the U.S. we are not exactly edified by the slaughter of United Nations officials as a means of protesting the burning of a book.

Debate rages on the Internet. On the one hand there are the trigger happy red neck types who say we should nuc the whole Middle East back to the stone age and build an oil pipeline from the Mediterranean to the Gulf of Mexico.

On the other extreme are the neo-isolationists who say we should bring all our troops home, build windmills, nuclear reactors, and solar panel highways. And drive electric cars.

Even Pastor Jones ought to realize that burning a book will not snuff out the words. Ideas live in the minds and hearts of human beings. The real contest of the twenty-first century is between Western Civilization and Islam.

There was time when Western Civilization was called Christendom. Eastern and Western Europe, North and South America were dotted with Christian churches in every city and village. And people went to them.

It was a culture of faith, and hope and charity. Of doing good and avoiding evil. Of marriage, family and hard work.

But no more. What is endemic in the West today is better described as multi-cultural hedonism.

My Dad used to say that the best evangelism was good example.

I ask myself whether we can hope to win the hearts and minds of Muslims by the example we show on our television, in our motion pictures, on our Internet.

I ask myself whether we can hope to persuade a burgeoning population of Muslims that it would be in their best interest – that they would be happier – if instead of spawning large families, they were to embrace birth control, abortion and homosexuality.

I wonder if people who block traffic during Friday prayers by prostrating themselves shoulder to shoulder across the highway by the hundreds – by the thousands – are likely ever to buy into a culture which bans the teaching of the Quran in public schools, or forbids the words of Muhammad from being inscribed above the courthouse door.

We have to condemn the criminal insanity of the mindless mob that slaughters non believers. But Hamid Karzai’s government isn’t going to arrest or prosecute anyone.

So what are we to do?

Tough question for Christian folk. What would Jesus do?

WHY THEY DID IT

2011-04-01T05:17:00.000-07:00

The fifty-five men who gathered in Philadelphia in 1787 were not there to come up with amendments to the Articles of Confederation.

Their marching orders were to revise the Articles. To rewrite the contract among the thirteen former British colonies.

The Articles didn’t work, and everybody knew it. There were no federal courts, there was no President. No power to tax. The Congress was the whole government. Every state had one vote, regardless of its population. It took nine of the thirteen states to pass a law, and all thirteen had to agree on any amendment to the Articles.

The Articles of Confederation couldn’t be fixed. Rhode Island would always vote ‘No.’

So the Founders knew they were writing on a clean piece of paper. Wisely, they began by spelling out who they represented and what it was that they were trying to do.

The Preamble begins with “We the People of the United States.” That’s very important. The Articles of Confederation had been an agreement among thirteen independent states. It was more like a treaty than a constitution.

The Philadelphia delegates saw themselves, not as representatives of state governments, but as agents of the people. The people of every state. All the people. And their purpose was to draft a constitution. To create a nation.

They began by spelling out their goals:

1. To form a more perfect union.
2. To establish justice
3. To ensure domestic tranquility
4. To provide for the common defense.
5. To promote the general welfare.
6. To secure the blessings of liberty.

I’ve thought about the Preamble for many years and it seems to me that they got their objectives in the right order.

Union was first, because whatever they were going to do, they had to do it together.

Justice was next, because they wanted a nation ruled by laws and not by despots.

Then came domestic tranquility, because they feared the tyranny of the mob.

Defense was fourth because a united, just and peaceful nation would be worth fighting for.

The fifth priority was the general welfare, the common good, the advancement of the human condition.

The final goal was liberty, seen as a blessing to be passed on to future generations.

Agreement on these goals was only the beginning. There were big states and little states. There were slave states and free states. There were farm states and commercial states. Each state decided how many delegates to send.

Rhode Island didn’t send anybody.

Compromise, compromise. That was the name of the game.

Should Congress vote by states or by population? Why not a House and a Senate?

The Federalists wanted a strong central government. The anti-federalists were afraid of a strong central government. OK, let’s spell out just what powers the central government will have.

And leave everything else to the states? Yes, to the states and to the people themselves.

But what about the future? Can we trust this new nation to the Congress? Will they change the constitution we’re writing? Can they renege on the compromises we’re making?

Make another compromise. Three quarters of the states must approve any amendment. No amendment can eliminate equal representation in the Senate. And if Congress won’t propose needed amendments, give the states a way to have a convention.

A convention. The only place where We The People can be heard.

WHAT IS IT?

2011-03-30T11:00:00.000-07:00

To some folks, it’s a sacred relic.

The original Constitution of the United States is kept in a specially designed exhibit case and vault in the Exhibition Hall of the National Archives Building in Washington, D.C.

Two pages of the Constitution are on display when the Hall is open to visitors; every day of the year except Christmas and New Year’s Day. The other pages are down in the vault except on September 17, when all four pages are brought out in celebration of Constitution Day.

Our federal government goes to a lot of trouble to protect those four pieces of paper.

Each page is encased in a Thermopane envelope filled with helium and a measured amount of water vapor. All the contaminates in the air we breathe are kept out. And nobody can actually touch the pages.

Even the display case has laminated glass filters and a yellow cellulose acetate layer to keep out ultraviolet rays.

That’s not all. Twenty feet below the display case is a vault. It’s 5 feet by 7 and a half feet and it’s six feet deep. The floor and walls are steel and concrete, fifteen inches thick.

There’s an electric mechanism that lowers the display case into the vault and closes a massive lid over it. There’s a stand by device in case of a power failure.

The vault is located in the center of the building, so there are either three or four solid masonry walls on every side, plus five floors and a roof of reinforced concrete above it.

Whenever the Constitution is on exhibit, it is protected by an armed military guard. No flash bulb photographs are allowed.

Bottom line, we the people of the United States have built a shrine to the Constitution. It’s an historical relic. You take the kids there to see it. To whisper and point with awe and reverence.

Just like the Lincoln Memorial, the Washington Monument, the Tomb of the Unknown Soldier. It’s one of the sites to see. A look at history. A peek at the past.

I think it’s wonderful that our federal government is taking such good care of the original constitution. It feeds our need to connect emotionally with the Founders of our nation, and to appreciate what a marvelous thing was done two centuries ago.

But there is a downside.

Treating the charter of our nation with untouchable reverence feeds the notion that it is somehow a divinely inspired pronouncement. Like the ten commandments to be carried around in the Ark of the Covenant, but not otherwise given much attention.

Folks figure that if it’s God’s law, God will enforce it.

And if the Constitution is a one time gift from on high, then it is permanent, complete, perfect and unchangeable. There are no more Washingtons, Madisons, Hamiltons or Franklins and never will be.

But of course everybody knows there are no more twenty dollar jury trials in Federal Court, as required by the seventh amendment, and the two year limit on appropriations for the military set out in Article 1,Section 8 has been swept under the rug.

Because everybody knows that times change. This is the twenty first century. It’s a different world, and it runs on a different set of rules.

The Constitution is protected and revered because it is old. But sooner or later old becomes ancient and ancient becomes archaic. And archaic means it doesn’t really matter anymore.

So the more we love it and honor it, the less we want to think about it or obey it.

Sort of like taking grandma to the home.

HITTING THE BOOKS

2011-03-29T21:34:00.001-07:00

It was important for Cooley’s new Law Review to be a credible scholarly publication.

We were the new kid on the block. The non-conforming, anti-establishment professional school with no university affiliation. No cadre of Phd’s. No football team.

The maiden issue of our Law Review, especially the lead article, had to be laden with footnotes, citations of authority, references to recognized authors and their works.

I dug in with determination. Soon my office was piled high with books, strewn with fools cap, and cluttered with three by five cards. I had always needled the faculty about keeping their offices tidy. Now I was another messy professor.

But if I wanted to be scholarly, I was not about to write a speculative work of pure theory. Erudition was not my strong suite. My whole career had been directed toward action.

Mere expository writing didn’t appeal to me. To begin with, I have a very selective memory. People who win trivia competitions amaze me. I remember what is important to me. If it isn’t going to be on the final, forget it.

As a lawyer and a judge, especially as an appellate judge, I wrote to persuade. I analyzed to decide. To my way of thinking, advocacy is the highest and most meaningful form of communication.

Law and politics were both my vocation and my avocation. I had read many of the works of Thomas McIntyre Cooley, the learned 19th century jurist for whom our law school was named. He was a prodigious scholar and writer. His work on constitutional limitations remains on the first rank even today.

Especially today. Cooley wrote about constitutions back in a day when people still understood the legal and political realities associated with adopting the supreme law of the land.

I was appalled, both as a judge and as a legal educator, that one could graduate from college and even from law school in the United States, and never read the 4,543 words that comprise the United States Constitution.

Earlier in my judicial career, I was invited to teach a course in the American Constitution at the University of Detroit. I always began the first day of class by telling the students – they were all juniors and seniors – to take out a piece of paper and write down the Preamble to the U. S. Constitution.

Quite a few of them wrote “We the People…” That’s all. Just “We the People…”

Once in a while, I would get a truly poetic and patriotic essay about justice, equality, and freedom, which, while high sounding and impressive, had no similarity to the actual Preamble.

In the three or four years I taught there only a handful of students got it right.

Constitutional Law is a required course in almost all American law schools, but I doubt that any Con Law professor requires his or her students to read the constitution. The focus is all on Supreme Court cases.

Charles Evans Hughes, a Chief Justice of the United States Supreme Court famously said, “The constitution is what the Supreme Court says it is.” Professor Felix Frankfurter, who later was appointed to the Supreme Court by Franklin D. Roosevelt, went even further. He said. “The Supreme Court is the Constitution.”

In 1949, George Orwell wrote a book called “1984.” It was an imaginative journey into a future decade when advances in science would make human freedom and democracy obsolete.

By 1984, it was coming to pass. We had put a man on the moon. Americans thought government could do anything. They didn’t know or care how things got done. Whether laws were made by Congress, or declared by the Supreme Court, or commanded by the President made no difference.

Just get the job done. Control inflation. Protect the environment. Rev up the economy.

America was becoming a government of men and not of laws. I felt it was time to get back to basics.

SMOKE AND MIRRORS

2011-03-24T19:22:00.000-07:00

$14,086,378,714,223.47

That’s what we owed as of February 16, 2011 at 2:08:30 AM.

That’s $45,434.10 for every man, woman and child in the United States.

It’s getting to be a worry. Americans of every political stripe moan and groan on the Internet and elsewhere about the burden of debt. ‘Fourteen trillion dollars’ has become a battle cry. A rallying cry. Even, in some neighborhoods, a call to arms.

One movement it occasions is the thrust for a balanced budget amendment to the federal constitution. The latest version, introduced in the House of Representatives as House Joint Resolution 1 is as follows:

Section 1. Total outlays for any fiscal year shall not exceed total receipts for that fiscal year, unless three-fifths of the whole number of each House of Congress shall provide by law for a specific excess of outlays over receipts by a rollcall vote.

Section 2. The limit on the debt of the United States held by the public shall not be increased, unless three-fifths of the whole number of each House shall provide by law for such an increase by a rollcall vote.

Section 3. Prior to each fiscal year, the President shall transmit to the Congress a proposed budget for the United States Government for that fiscal year in which total outlays do not exceed total receipts.

Section 4. No bill to increase revenue shall become law unless approved by a majority of the whole number of each House by a rollcall vote.

Section 5. The Congress may waive the provisions of this article for any fiscal year in which a declaration of war is in effect. The provisions of this article may be waived for any fiscal year in which the United States is engaged in military conflict which causes an imminent and serious military threat to national security and is so declared by a joint resolution, adopted by a majority of the whole number of each House, which becomes law.

Section 6. The Congress shall enforce and implement this article by appropriate legislation, which may rely on estimates of outlays and receipts.

Section 7. Total receipts shall include all receipts of the United States Government except those derived from borrowing. Total outlays shall include all outlays of the United States Government except for those for repayment of debt principal.

Section 8. This article shall take effect beginning with the later of the second fiscal year beginning after its ratification or the first fiscal year beginning after December 31, 2012

With all due respect for the bona fides of the Congressmen who endorsed this resolution, I must say it does not do what the American people hope will be done. In fact, it has the aura of a smoke screen to cover continued deficit spending by the Congress.

What exactly does it mean, for example, to say that in the President’s proposed budget outlays shall not exceed receipts?

A budget is an estimate, for heaven’s sake. An estimate is an opinion. A guess. A target. A hope. Nay, an estimate is an illusion. When I was a young married man I drew up household budgets every other month. They always balanced, but I never could live by them.

The three fifths vote and the rollcall requirement are window dressing. Forty votes in the House and ten in the Senate are hardly the stuff of constitutional protection.

And how about the exemption for wartime and “threat to national security?”

That language would have nullified their amendment over the last decade, and for how much longer in this dangerous world?

HJ Res 1 only proves what most Americans intuitively know. You don’t leave the fox in charge of the hen house. And you don’t give the job of drafting a balanced budget amendment to the very people who have spent us into 14 trillion dollars worth of trouble and worry.

If war is too serious to be left to the generals, constitutional reform is too important to be left to the politicians.

We need a convention, and we need it now.

MAKING LAW REVIEW

2011-03-22T05:15:00.001-07:00

By the early eighties, Thomas M. Cooley Law School was well established. Still, there was much to do. For one thing, we needed a Law Review. All respectable law schools have law reviews.

Making Law Review is the definition of success to many students.

Fortunately, we had a faculty member on board who knew something about starting academic publications. His name was Spencer Abraham. When a student at the Harvard Law School, Spencer had founded the Harvard Journal of Law and Policy. It is still being published and has earned the kind of prestige normally associated with Harvard. Spencer succeeded personally as well. He was eventually elected United States Senator from Michigan.

Spencer agreed to take on the job of faculty moderator. One of his first initiatives was to persuade me to write the inaugural article for the new publication.

I had been away from scholarly writing for a long time. While I had authored many opinions on the Supreme Court, they were not of the truly academic genre. And anyway, even opinion writing was then ten years ago.

I did have an interest, however, which got my juices flowing. Cooley had become a truly national law school. At every welcoming luncheon, I would ask the students from each state to stand and be recognized. There were always more than forty states represented. Realizing that they were part of a truly national class always bolstered the enthusiasm of the freshmen.

Not to mention how satisfying it was for the faculty and the admissions office.

The decade of the 1980’s was a special time in the history of the United States. It was the occasion to celebrate the two hundredth anniversary of the establishment of our nation. Cornwallis’s surrender at Yorktown, the recognition of American independence, and finally, the adoption of the United States Constitution, made the 1780’s a special time in our history.

I conceived of the idea of conducting a convention as contemplated by Article V of the Federal Constitution, and I invited the Student Bar Association to participate.

I told them that if we could enlist the participation of actual registered voters from two-thirds of the states, we would convene and undertake to consider whatever amendments the students might propose.

I rented a huge tent, which enclosed the parking lot next to the administration building on South Grand Avenue. Rented tables and chairs. Had signs made identifying the states.

When the day came, more than two hundred student ‘delegates’ showed up. We had a credentials committee which examined the identification of each attendee, and directed them to the table where their state caucus was ensconced.

Phil Prygoski, our outstanding Con Law professor undertook to deliver the keynote address, whereupon, I took the microphone and tried to steer the assembly through the process of introducing, debating and voting on various proposed constitutional amendments.

It was a great exercise. I was especially touched by some of the personal experiences and backgrounds many of them brought to the table. On some issues, they were predictably liberal. On others, surprisingly traditional. The age and citizenship criteria for election as President were hotly contested, but ultimately not targeted for change.

The mock convention affirmed my determination to focus my law review article on the process of amending the constitution contemplated by Article V.

It would be a labor of love.

It was before I became addicted to word processing on the computer. I took out my lawyer-like yellow foolscap pad and across the top of the first page I scribbled the title.

Return to Philadelphia.

THE ECHO OF MISCHIEF (Number 20)

2011-03-11T18:14:00.000-08:00

The evil that men do lives after them; the good is oft interred with their bones.

So said Mark Anthony in Shakespeare’s Julius Ceasar. So it might also be said of Soapy Williams.

Twenty-eight years after Kelley v Riley, another Attorney General, this time a Republican, Bill Schuette, has filed a Quo Warranto proceeding seeking to remove a Michigan Judge.

Kelley sought to remove a woman from a male court. Schuette wants to oust a black judge from a white court.

Here’s the scenario: Hugh Clarke was appointed by outgoing Democratic Governor Jennifer Granholm in the waning days of 2010 to fill a vacancy in the Lansing District Court caused by the resignation of Amy Krause, who was appointed to the Court of Appeals.

Krause had just been reelected in November of 2010 to a term to begin on January 1, 2011.

Clarke’s appointment specified that he is to serve until a successor to Krause is elected. That will be in November of 2012.

Brother Schuette, waving the Kelley v Riley flag says, “No.” He wants the new Republican Governor, Rick Snyder, to appoint a judge for Lansing.

His lawsuit claims that on January 1, 2011, when Judge Krause’s new term of office was to begin, a new vacancy was created. He insists that Judge Clarke ceased to be a judge on that day.

And so, I suppose, the Attorney General will argue that he is not asking the court to remove a judge. Not really. He’ll say he is not really asking the court to do what the constitution forbids. No matter how it looks to everybody.

The problem with that theory is this: if Clarke is not a judge, why do you want him ousted? What is it you want him ousted from?

If Hugh Clarke were truly a stranger to the office of District Judge, a pretender, a squatter, if you will, there would be no need to seek a court order ousting him. The court administrator would tell him to get out. The State Treasurer would take him off the payroll. The lawyers would refuse to appear. The plaintiffs and defendants would go elsewhere or stay home.

If there were, in fact, a new vacancy created on January 1, it would have been filled by the Governor. The new judge would have been put on the payroll. He or she would have donned the robe and started hearing cases.

But the Attorney General knows there is no vacancy. His brief describes Hugh Clarke as a “sitting judge.”

His lawsuit is the common law writ of Quo Warranto, a Latin phrase which means, “By what authority?” The writ is used to inquire into the legal basis for exercising official power.

By definition, Quo Warranto is only used when the respondent is a de facto office holder. You don’t ask someone, “By what authority are you functioning as a judge?” unless the person is actually functioning as a judge.

Frank Kelley referred to the ousting of Dorothy Riley as a “judicially created vacancy.” And that’s exactly what Bill Schuette is trying to do. He wants the court to remove a judge. To create a vacancy. To do exactly what the constitution of Michigan says the court cannot do.

The Michigan constitution provides three ways to remove a judge. He can be impeached. He can be removed for misconduct at the recommendation of the Judicial Tenure Commission, or he can be removed for any other reason by the Governor with consent of two-thirds of both houses of the legislature.

The Supreme Court can’t do it. The Supreme Court should not have done it in 1983.

The Riley case should be assigned to the archives like Dred Scott and Plessy v Ferguson.

And Soapy’s mischief should likewise be undone.

WHAT GOES AROUND (Number 19)

2011-03-10T16:00:00.000-08:00

Stick with me on this. It’s confusing, but very interesting.

Under the constitution of 1908, Michigan had eight justices on its Supreme Court. With a solid Republican majority, John Dethmers became the first so called permanent Chief Justice. He was Chief for six years from 1956 to 1962.

In 1962, Thomas (the Mighty) Kavanagh wanted to become Chief. The court was evenly divided. Dethmers stayed on as Chief because there were not five votes to elect someone else.

Finally, to end the deadlock, Paul Adams, a Democrat, broke ranks to vote for Leland Carr, a Republican.

Kavanagh never forgave him, and in the November election supported the Republican, Mike O’Hara, against Adams. In return, O’Hara promised to support Kavanagh for Chief.
O’Hara defeated Adams, and Kavanagh was elected Chief Justice in 1964.

I was elected in 1966, defeating Otis Smith, a Democrat. The court was still eight justices in 1967, evenly split between Republicans and Democrats. Gene Black wanted me to be the Chief, but I declined. He then joined the Republicans to put Dethmers back in the center chair.

In November of 1968 O’Hara and Ted Souris were due to run for reelection. When Souris decided not to run, the constitution of 1963 required that the Court be reduced to seven.

That left O’Hara as the only incumbent on the ballot. He lost to Thomas Giles Kavanagh. Thomas the Good was reelected in 1976 and was alone on the ballot again in 1984.

His opponent was Dorothy Comstock Riley.

Dorothy had good support among members of the Bar, women’s organizations, and of course the Republican Party which nominated her.

The only issue she campaigned on was her qualifications. She had experience, both as a trial judge and on the Court of Appeals.

Still, almost every news conference in cities across the state would eventually turn to the case of Kelley v Riley.

Was she running to seek revenge for being ousted?

What did she think about the Court’s action in that case?

How did she feel about it?

Did she think she could work with Soapy Williams?

Dorothy gave short, evasive answers. She never took the bait. She was determined to travel the high road, conscious that if she won, she would be working every day with men who had rejected her the year before.

Still, there was no way to prevent it. Riley v Kavanagh became a reprise of Kelley v Riley, a referendum on the Court’s ouster of Dorothy Riley.

The response of the people was resounding.

Dorothy Comstock Riley was returned to the Supreme Court.

Thomas the Good was ousted by the voters.

The Michigan constitution of 1963 provides that no person can run for judicial office after their seventieth birthday.

Born in 1911, G. Mennen Williams was ineligible to run for reelection in 1986.

In January, 1987, the Court elected his successor as leader of the court. The vote was unanimous. Three Democrats, three Republicans and Charles Leonard Levin elected the second lady to serve as the Chief justice of Michigan.

Dorothy Comstock Riley.

What goes around, comes around. That’s what they say in politics.

AN ANCIENT WRIT (Number 18)

2011-03-09T16:00:00.000-08:00

Somewhere in the dark recesses of my mind I had the notion that there is some kind of a writ that would permit a stranger like me to butt into someone else’s law suit.

A little digging in the law library yielded the writ of Coram Nobis. It’s an ancient common law writ used to correct a fundamental error or miscarriage of justice.

I thought it fit the Riley case.

I prepared an application for a writ of Coram Nobis and filed it in the Supreme Court.

Then I called a news conference.

No doubt the reporters thought I was playing the part of Don Quixote, tilting at windmills, chasing the impossible dream.

One of them finally posed the question. What did I think the Court would do with my request? Did I think they would listen to me? What did I plan to do next?

I told them that I had asked for a chance to address the Court, and I expected to do so at the next scheduled session of the Court, which would be on March 8th.

And if the Court didn’t permit me to speak, what would I do then?

That question gave me a chance to utter a usable sound bite.

“My portrait is hanging in the courtroom,“ I said. “I’ll probably just sit under it until they call on me.”

Actually, it never came to that.

George Bushnell, representing the State Bar of Michigan, was scheduled to argue the first case on March 8, 1983. When Soapy gaveled the Court into session, George stood and asked the court to permit him to yield to me.

They did, and he did, and I had my say.

I began by recounting my exchange of letters with the court clerk, in which I was admonished to avoid personal contact with members of the Court.

I HAVE OBSERVED THOSE REGULATIONS, IF IT PLEASE THE COURT, AND THE JUSTICES HAVE OBSERVED THEM AS WELL.

WE HAVE EVEN AVOIDED THOSE SOCIAL CONTACTS WHICH OUR LONG FRIENDSHIPS – AND I COUNT EACH OF YOU AS MY FRIEND – WOULD OTHERWISE HAVE OCCASIONED, OUT OF CONCERN TO AVOID EVEN THE APPEARANCE OF IMPROPRIETY.

I AM HERE THIS MORNING, IN KEEPING WITH THAT OBJECTIVE, TO PROVIDE AN OPPORTUNITY FOR PROPER, PUBLIC DIALOG ON THE PROPOSITION WHICH I ADVANCED IN MY LETTER.
ARTICLE 6, SECTION 4 OF THE CONSTITUTION STATES: “THE SUPREME COURT SHALL NOT HAVE THE POWER TO REMOVE A JUDGE.”

IT IS MY PROPOSITION THAT SECTION 4 IS UNQUESTIONABLY CONTROLLING IN THIS CASE. THERE IS NO QUESTION THAT JUSTICE RILEY WAS A JUDGE. THERE IS NO QUESTION THAT THIS COURT PURPORTED TO REMOVE HER.

THE PLAIN AND UNAMBIGUOUS MEANING OF SECTION 4 IS SUPPORTED BY THE CONSTITUTIONAL CONVENTION’S ADDRESS TO THE PEOPLE, WHICH STATES THAT THE COURT “*** IS DENIED THE POWER TO REMOVE A JUDGE.”

Then I told the court that I could not imagine any theory or explanation which might weaken or carve out an exception to that plain and simple denial of authority, and concluded by saying,

BUT IF ARICLE 6, SECTION 4 IS TO BE EXPLAINED AWAY, IF THE COURT PLEASE, IT DESERVES A DECENT BURIAL, AND I RESPECTFULLY SUGGEST THAT IF THIS COURT IS GOING TO REMOVE A JUDGE CONTRARY TO THE APPARENT EXPRESS PROHIBITION OF THE CONSTITUTION, IT OWES THE PROFESSION AND THE PUBLIC THE DUTY TO STATE ITS REASONS IN WRITING AND ON THE RECORD.

Soapy stared at me in silence. Like a seven hundred pound gorilla.

HITTING THE ROAD (Number 17)

2011-03-08T16:00:00.000-08:00

Cooler heads would surely have deemed my effort a fool’s mission.

Truthfully, I did not really expect to be able to persuade the Supreme Court to do yet another turn around and seat Dorothy Riley.

Even Chuck Levin, perhaps especially Chuck Levin, would not be inclined to revisit the decision to oust Dorothy.

But at this point that did not matter so much as the damage the court had done to itself because of its departure from proper procedure.

It was perhaps overly sanguine, but I really thought that getting the court to revisit their decision and do it over again, even if it meant the same result, was within the realm of possibility.

In any case, the bizarre process would be, or ought to be of great interest to law students.

So I arranged to meet with students at all five of the law schools in Michigan.

At each school, I invited the media to attend.

In order to emphasize the remarkable failure of all the lawyers in the case to consider Article 6, Section 4 of the state constitution, I had lapel stickers printer, which announced in large bold letters, THE SUPREME COURT DOES NOT HAVE THE POWER TO REMOVE A JUDGE.

A few of the students did try to challenge me.

Their primary argument was based on the same thought process displayed by the news media. If all those high priced lawyers and all those esteemed judges didn’t think the constitution prohibited the court from removing Justice Riley, how could I say otherwise?

I, of course, returned the challenge. If the words don’t mean what they say, what do they mean?

The tour of law schools ended at Thomas M. Cooley Law School in Lansing.

I billed it as a debate between myself and my old friend Frank Kelley, who, incidentally, was a part time member of the Cooley faculty.

Frank declined to show up. I knew he would. I had the maintenance staff dig up a Styrofoam bust from the store room and I topped it with a grey British solicitor’s wig and set it on the speakers table next to me.

Using my most resonant stentorian voice, I played the role of Frank Kelley trying to answer my questions. The faculty, students, newsmen and TV folk enjoyed the show.

How many people came to share my indignation over the Supreme Court’s lapse of propriety is questionable.

Admittedly, I was getting publicity. But it troubled me that the news stories used phrases like, “Brennan, who was a Republican candidate for Lieutenant Governor, claims that the constitution prohibits the court form removing a judge.”

The implication, of course, was that I was motivated by partisanship. Also, that what the constitution actually said was subject to differences of opinion.

I turned my attention to the State bar of Michigan. At the time, I was a member of the governing Board of Commissioners. I raised the issue with the Board and asked the bar to pass a resolution urging the Court to revisit the Riley case.

Only 15 of the 26 commissioners showed up for the meeting. Nine of them voted against taking any action.

The dominant argument against my motion was that criticizing the Court would do no good. They had done what they had done, and weren’t about to back down.

On February 23, I wrote a letter to the justices, in which I urged them to reopen the case and consider Article 6 Section 4.

The clerk replied promptly, advising me that the case was, or might be still pending, and that the justices would not accept any communication from me.

EXPLAINING THE INEXPLICABLE (Number 16)

2011-03-07T15:46:00.000-08:00

The media were all over it. Headlines blared the news that the Supreme Court had reversed its decision and ousted Dorothy Riley.

The court’s sudden about face was the handle that gave the story legs. To the average person, Supreme Court decisions are sacrosanct. Once the Supreme Court has spoken, the matter, any matter, is done. Over. Finished.

The idea that the justices might be able to take a mulligan doesn’t sit well with most folks.

Especially when the division of votes on the court follows party affiliation, the picture of a court counting and recounting noses confirms the suspicion of the public that court decisions are not really based on law, but are simply expressions of the political choices of the justices.

The Riley ouster fermented lots of editorial comment about the need somehow to get the Supreme Court out of politics. It’s an old theme that rises up and ebbs like a predictable tide of public opinion.

Of course the immediate focus was on Chuck Levin. The enigmatic justice had created a fire storm with his change of heart. The media demanded an explanation.

Reluctantly, Levin agreed to a news conference.

Press relations were not Levin’s forte. Getting a sound bite from him was like trying to distill a doctoral thesis on atomic particles down to a headline.

He answered every question with a long, complicated dissertation.

His first opinion wasn’t really intended to support Riley. It just said that he didn’t want to do anything. He still couldn’t decide which Governor should be able to make the appointment.

In fact, he didn’t think the court should be deciding the matter. He could see no reason why the new Governor, Jim Blanchard, couldn’t have appointed somebody to the court also. The court had operated with eight members for many years, it could do so again, at least until the next election.

When the fog and the obfuscation settled, what emerged in the papers was the simple fact that Levin had changed his mind. No one will ever know why. Maybe not even Levin himself.

There were rumors that some Democratic Party operatives figuratively camped out at Levin’s home over the weekend. If so, and if he had decided to vote to oust her, he would have been sitting across the table at the conference that Tuesday harboring the knowledge of what he had decided to do.

Or, as it has been suggested, was there something that happened that day, something she said, some way she voted, which triggered his decision?

Whatever the scenario, it was a fait accompli.

As I read the press reports, my blood began to boil.

Being a former Chief Justice of the Supreme Court of Michigan meant a lot to me. It was the defining achievement of my career. Whatever demeaned the court diminished me, as it besmirched the reputations of my friends and embarrassed the institution we all had served.

I tried to reach Dorothy, but she declined to talk to me. I spoke to Wally. He thanked me for my interest, but he made it clear that Dorothy was not going to take the matter to the Federal Courts. She felt the work of the court had already been unduly interrupted. Continuing to embroil the court in internal conflict was not good for the court and not good for Michigan.

I remembered what old Gene Black had said when I was on the court. I protested something that was proposed, saying, “We can’t do that. We have no authority to do it.”

His reply stuck with me. “If we do it, who shall gainsay us?” It came to be known as the seven hundred pound gorilla rule.

The notion that a majority of the court can do whatever they want to do is absolutely anathema to me. It denies the rule of law.

I could not let it stand without a challenge.

COMPLETELY ALONE (Number 15)

2011-03-06T15:42:00.000-08:00

Justice Dorothy Comstock Riley treated her law clerk, Brian Mckeen to dinner at Robert’s a campy underground bistro in East Lansing..

It had been an interesting day, her first back in action since the dreadful challenge to her appointment had been mounted by Frank Kelley.

It was a celebration. Dorothy was assured that her relations with members of the court would be collegial and friendly.

Even Soapy, whom they suspected had connived to remove her even before Frank Kelley filed his lawsuit, had come around. On Friday afternoon he had walked into her office and offered his congratulations. He was very gracious. His gesture was particularly meaningful and appreciated by Dorothy.

The war was over.

It was time to celebrate.

Sometime around seven o’clock, they returned to the Capital Park Hotel. It was raining. Brian dropped the justice off at the front door, then went on to park the car.

As Dorothy entered the lobby, she recognized a familiar face.

Harold Hoag, the Clerk of the Supreme Court walking toward her. She instantly sensed that something was amiss. He handed her a piece of paper and said, “Mrs. Riley, I have an order for you.” Then he turned and walked out of the building.

She unfolded the document, an eight and half by eleven standard letter size page.
At the top was the title of the case of Kelley v Riley.

She read the words slowly, in stunned disbelief.

Upon reconsideration on the Court’s own motion, there now being four justices who vote for ouster, the order of February 11, 1983 in this cause is vacated. This cause having been brought to this Court by complaint for quo warranto and due deliberation having been had of the complaint and the of the briefs and oral arguments of the parties, it is hereby ordered and adjudged that defendant Dorothy Comstock Riley, has, since the first day of January, 1983, claimed to exercise the office of Justice of the Supreme Court, and whereas, upon full consideration we find that claim from that date to be without authority, it is ordered that the said defendant, Dorothy Comstock Riley is hereby ousted and excluded from the office of Justice of the Supreme Court.

She was still standing there, paralyzed by shock, when Brian came into the lobby.

Shoving the document into her purse, she gave her clerk a strained smile.

“Pack your bag, Brian.” She said it in a low but firm voice. “We’re checking out.”

The 97 mile ride down Interstate 96 to Grosse Pointe was mostly silent, with sporadic bursts of commentary, mostly by Brian.

How could they do this? How could men, sworn to uphold the constitution, so blatantly and crassly violate their oaths of office?

The Federal Courts would not let this happen. His boss had not been given even the merest modicum of due process.

She had been fired. He would lose his job as well. They had been on the payroll for six weeks of 1983. Would they be expected to return their salaries?

It had been an emotional roller coaster of a day. Excitement and anticipation in the morning. Celebration at supper. Then darkness and devastation.

86 Lothrup. Home again. Early. Unexpectedly. And broken hearted.

Brian carried her bags inside, and said good night.

And then Dorothy was alone. Her son, Peter was staying with his grandmother. Wally
was in New Orleans.

If she shed a tear, nobody saw it.

THE DARKEST DAY Number 14

2011-03-05T15:37:00.000-08:00

15 February, 16:30 hours.

Retired Navy Commander, and currently Supreme Court Justice James L. Ryan is teaching a class in evidence at the Thomas M. Cooley Law School in the converted Masonic Temple Building across from the State Capital.

In mid sentence, the door opens and class is interrupted by a messenger from the Dean’s office.

The note delivers an abrupt and ominous message. Please call the Chief Justice at his office.

Jim Ryan apologized to his students, gave them a quick assignment for next weeks' class, then headed out the door and down the elevator to the Dean’s office.

Within minutes he had Soapy Williams on the line.

“I’m teaching a class. What’s so important to interrupt my class?”

Soapy spoke in his usual slow, deliberate tone. “We have four votes to oust Dorothy. I thought I would do you the courtesy of letting you know before the news gets out.”

“When are you going to do this?”

“Now. Right now.”

“Without a hearing? Without even a meeting of the court?”

“No, indeed. That’s why I asked you to call. We’re here in my office.”

Ryan could feel his face redden, his heart thumping, teeth grinding.

“I’ll be right there,” he growled and slammed the phone down.

Minutes later, he stepped out of the elevator on the third floor of the Law Building. As he started down the hall, he encountered Jim Brickley, just coming out of his office. They compared notes. Brickley had just received the same summons.

Soapy was behind his desk. Mike Cavanagh and Giles Kavanagh were sitting on the couch. Chuck Levin was standing near the window.

Ryan waded right in. He was more than angry. He was livid. The case of Kelley v Riley was over. The court had issued its order. Indeed made the order immediately effective.

There was nothing pending in the court on which to vote, no lawsuit for them to decide.

He reminded the Chief Justice that the court’s own rules require a petition for a rehearing to be filed by one of the litigants, and an opportunity for both sides to be heard before the court could revisit one of its decisions.

There simply is no such thing as the court re-voting on a case which has already been decided. It cannot be done. Not only would it violate the court’s own rules, it clearly deprived Dorothy Riley of notice and an opportunity to be heard.

Didn’t the justices realize that what they were doing violated the Constitution of the United States? Weren’t they aware of the damage this would do to the prestige of the court?

Soapy said nothing. Only Chuck Levin spoke. He hadn’t really intended to vote for Dorothy. He only meant to say that he wasn’t persuaded either way.

Ryan asked if he would be given a chance to file a dissenting opinion.

Soapy nodded, ”Yes, but not tonight. We are going ahead with the order.”

The meeting lasted thirty, maybe forty minutes. Finally Brickley pulled Ryan aside.“We’re swimming upstream,” he whispered. And so they were.

As they left the room, they could hear the Chief Justice calling Harold Hoag, the Clerk of the Court.

TERRIBLE TUESDAY (Number 13)

2011-03-04T15:33:00.000-08:00

Her weekend had been ebullient. The challenge to her tenure on the Supreme Court was dismissed. Between congratulatory phone calls, including several from her husband Wally, who was in New Orleans for the mid year meeting of the American Bar Association, and preparations for the upcoming week of work in Lansing, Dorothy Riley fairly bubbled with enthusiasm and anticipation.

On Monday morning, her law clerk, Brian Mckeen, loaded her things into the car. Two large briefcases full of papers, her overnight bag, and the leather case in which her carefully folded judicial robe was carried.

Despite the fact that she had been on the court for nearly a month, she had worn her robe only three times; at her own inauguration and those of Justices Brickley and Cavanagh.

She would stay at the Capital Park Hotel, a short walk to the Law Building.

And she would be ready. Always a good student, Dorothy approached her duties with scrupulous diligence. Her colleagues would soon see how valuable she could be.

Tuesday, February 15 dawned a clear, crisp, cold Michigan winter day. The agenda called for the court to meet at 9:30 and be in conference all day, disposing of administrative chores.

And window matters.

That’s what they called applications for leave to appeal and other miscellaneous motions. Window matters. It all started generations ago when the clerk of the court brought each Justice his share of motions to read and decide. They were stacked on the window ledge. Hence the name.

The mood in the conference room was polite, but somber. Dorothy went out of her way to be cheerful and friendly. Nine-thirty came and went. Everybody in their chairs except Chuck Levin.

It was ever thus. Justice Charles Levin had no concept of time. He was always late. His opinions were invariably overdue. He was slow to decide, slower to act.

When the bailiff appeared at the door to announce that Mr. Justice Levin had just called from his car to report that he was a few miles west of Howell and that he would be there as soon as possible, there was a collective groan around the table.

Someone attempted to break the ice.

“Maybe we ought to oust him for habitual tardiness.”

Nobody laughed.

As the day passed, the court worked its way through several dozen issues. Dorothy contributed to the discussion, stating her views succinctly and softly. As was the custom, lunch was brought in, and the work continued until late afternoon.

It was nearly four o’clock when Soapy gaveled adjournment.

In the hallway, Mike Cavanagh took Dorothy’s arm and asked her to stop by his office for a few moments.

Inside, he began by expressing his personal regard and admiration for her as a person and as fellow judge on the Court of Appeals. He was sure that they would be able to work together on the Supreme Court as well. He hoped she understood that his vote in the Quo Warranto proceedings was not reflective of any personal animosity. While she knew he was a lifelong Democrat, he hoped she appreciated that his vote was based on his reading of the law, that it was principled and not political.

Dorothy reassured him that they were friends, and that there was no hatchet to be buried.

They hugged. She left to go to dinner with her clerk.

Twenty minutes later Justice Cavanagh’s phone rang. It was the Chief summoning him to a meeting in his office. Now.

A TIME TO WRITE (Number 12)

2011-03-03T15:24:00.000-08:00

In the Supreme Court of Michigan, the process of writing opinions is often a free for all.

Having expressed their gut reactions on the day of argument, the Justices repair to their caves to ferret out the footnotes and compose the soaring prose by which they will justify to the public, the legal profession, the media and the ages the very same conclusion they hinted at in conference.

These draft opinions are then circulated among the members of the court, and memos fly between and among their offices, agreeing, disagreeing, praising, criticizing, debunking, and concurring.

Eventually, the court complies with the mandate of Article 6, Section 6 of the State Constitution. It says:

Decisions of the supreme court, including all decisions on prerogative writs, shall be in writing and shall contain a concise statement of the facts and reasons for each decision and reasons for each denial of leave to appeal. When a judge dissents in whole or in part he shall give in writing the reasons for his dissent.

In the case of Attorney General Kelley v Riley, the six participating justices ended up filing five opinions. The longest came from Soapy Williams.

Covering 27 pages, the Chief Justice’s opinion was divided by Roman Numerals into eight segments. It cites the constitution, it cites statutes, it cites cases. It concludes that Dorothy Riley’s appointment ended on January 1, 1983, and that newly elected Governor Blanchard was entitled to appoint someone to fill the vacancy caused by the death of Justice Moody.

Justices Kavanagh and Cavanagh concurred with the Chief.

Mike Cavanagh had been elected to the Court of Appeals in 1975. Dorothy Riley came on that court a year later, the first woman to be seated there.

They were colleagues for nearly seven years, but they had known each other much longer. As a young lawyer, Cavanagh had been an investigator for the Wayne County Friend of the Court’s office. His supervisor was Dorothy Comstock Riley.

The Court of Appeals sits in panels of three judges. Dorothy and Mike sat on cases together many times. They were friends.

Mike Cavanagh is an affable Irishman. Charming and witty, people like him and he likes people.

The Riley case greeted him on his first day on the Supreme Court. It was hardly the kind of decision he had dreamed of confronting while campaigning across Michigan two months before.

His concurring opinion revealed discomfort:

*** this case is not only of constitutional significance to our state, but it is also of personal significance to us, as we have been faced with the difficult task of making a legal judgment involving one of our own colleagues. Certainly no one has disputed defendant's personal qualifications to hold office ***

Justice Levin’s opinion revealed discomfort too, but not so much at ousting a colleague, as with embroiling the court in the process of judicial selection. He wrote:

We should carefully guard the reputation of this Court. Which Governor’s appointee sits on this Court matters far less in the long run than that this Court continue to be, and be perceived as, impartial and objective *** I am accordingly of the opinion that no judgment of ouster should be issued at this time by this Court in respect to the appointment of Justice Dorothy C. Riley ***

On Friday, February 11, 1983 the six sitting Justices met in the conference room and signed their opinions.

Then they directed the Clerk, Hal Hoag, to prepare an order dismissing the Attorney General’s lawsuit. And giving it immediate effect.

Dorothy was back on the Court. The nightmare was over, she told herself.

IN THE DUGOUT (Number 11)

2011-03-02T15:19:00.000-08:00

The word dugout is older than baseball. It’s basically just a hole in the ground. The most primitive form of shelter known to man.

When Harry Kelly wanted to share a confidence, he’s say, “We’re talkin’ in the dugout here.”

A colleague of mine on the Michigan Supreme Court and one time Governor, Harry was left for dead at the Battle of the Argonne Forest in 1918. Stacked in a temporary battlefield morgue, he managed to move enough to get noticed, and came home with only one leg, but otherwise very much alive.

Harry liked to say that the meetings of the Supreme Court in the conference room immediately after hearing oral arguments were ‘in the dugout.’

It was a time and place where Justices talked to each other off the record. Shared their impressions, preferences, hunches.

Nothing was in stone. Nothing was final. Nothing was binding.

Still, there were straw votes, and humans being what they are, the gut reactions that get shared in the dugout very often mature into the final, formal opinion of the court.

On January 24, 1983, the justices did what they always did in the dugout.

Chief Justice Williams went around the table, asking each member of the court to express an opinion about the case of Attorney General v Riley.

The split was predictable.

The “K” Kavanagh and the “C” Cavanagh both felt the Attorney General was right. So did the Chief Justice. Brickley and Ryan were inclined to go the other way.

Which, again predictably, left the matter up to Charles L. Levin.

Chuck Levin, the only surviving member of the court on which I served, is a very intelligent man.

I remember him as a man who spoke and wrote in very long sentences. No combination of words or ideas was too complex or convoluted to overload his brain or his pen.

He was, and remains, a scrupulously gentle and caring human being who shows up at the most inauspicious funerals and sends thoughtful, if not timely, notes of condolence, appreciation or congratulation.

That gentility spills over into his decision making.

He never jumps to a conclusion. Indeed, the very notion of a conclusion is nearly anathema to him. He is never happier than when a fork in the road has a multitude of prongs.

When it came time for Chuck to express his initial impression of the Riley case, he deferred. It was his usual way. He wanted to hear what the others would say. He wanted to weigh all the factors.

And so the discussion continued. But nobody changed their mind. It came back to Levin.

As he often did, he began by summarizing the arguments on both sides, noting the strengths and weaknesses of each.

Finally, he admitted what he so frequently had to admit.

He couldn’t make up his mind.

That said, he reluctantly deferred to the ancient, logical, and common sense rule of judicial decision making.

The Plaintiff always has the burden of proof and the burden of persuasion. If you make a claim, you have to prove your claim. If you want the court to do something, you have to prove your entitlement.

The Attorney General hadn’t convinced him that Justice Riley should be ousted.
And so he said, “I guess I’m with Dorothy.”

DEJA VU (Number 10)

2011-03-01T16:10:00.000-08:00

When I was Chief Justice, I was privileged to have a real cracker jack chief of staff by the name of Mike Devine.

I used to call him QT. His forte was quick thinking. For every crisis he had a ready answer, almost always the right one.

Mike has gone on to a successful career in the law and in banking. A leukemia survivor who takes each day as a blessing from a gracious Creator, Mike is more than glib. His memory for details is encyclopedic.

He called me the other day to add his own sidebar to the story of Michigan’s Second Lady.

It is a convoluted tale, typical of what happens in politics.

In 1969, Wayne County Sheriff Ray Gribbs eked out a narrow victory over Dick Austin, a popular black candidate, to become Mayor of Detroit. But the handwriting was on the wall. In the mayoral election of 1973, Detroit would elect its first black mayor.

Ed Bell was a charismatic black judge with political ambitions. In order to be eligible to run for mayor in 1973, he would have to leave the bench a year ahead of time. So in the Spring of 1972, he announced his resignation. Supposedly, he would leave the bench at a point in time when it was too late for his vacant seat on the circuit court to be filled in the 1972 November election.

Which would mean that the Governor’s appointed judge would serve until after the election of 1974.

Whether by miscalculation or mere happenstance, Judge Bell resigned just a little too early and he created a vacancy when there were still five days left for someone to become a candidate to succeed him in the November 1972 election.

Enter my friend Mike Devine. He and then Circuit Court Judge Jim Ryan were returning from lunch when a happy, noisy crowd of well dressed citizens emerged from the elevators. They had been in the eleventh floor auditorium where Ed Bell had just announced his campaign for Mayor and his resignation from the bench.

That night, Mike called Traffic Court Judge John Kirwan, a former University of Detroit basketball star, and said, “How would you like to be a Circuit Court Judge?”

There were just five days left to garner several thousand signatures on petitions to put Kirwan’s name on the ballot. Mike recalls conducting signature gathering classes for groups of Kelly girls at 7:30 in the morning.

They got the job done, but the Secretary of State refused to accept the petitions, relying on a statute which defined the ‘next election’ as one for which the filing date was more than seventy days after the vacancy occurred.

Governor William G. Milliken also relied on the seventy day statutory grace period. He assumed that his appointee would serve until after the 1974 election. His appointee would have two years of service on the bench and would have the benefit of the ballot designation as an incumbent Circuit Judge, practically assuring election.

Mike thought the seventy day statute was unconstitutional. Article 6, Section 23 said the vacancy was to be filled at the next election. And next means next.

The Michigan Supreme Court agreed, and in August of 1972 it ordered the Secretary of State to accept John Kirwan’s petitions, and place his name on the ballot.

And so it was that Governor Milliken’s appointee, who expected to serve at least two years and to be able to run in 1974 as an incumbent, was left with a dead end six month interim job.

The disappointed short term judge was none other than Dorothy Comstock Riley.

Ten years later, her judicial career would once again be on the docket of the Michigan Supreme Court.

AN ELEPHANT IN THE ROOM (Number 9)

2011-03-01T16:03:00.000-08:00

The oral arguments in the Riley case were scheduled for January 24, 1983, just two weeks after the court decided to take the case.

That’s not a lot of time to do the type of research and write the kind of briefs that a case of that importance demands.

Former Governor Milliken had retained University of Michigan law professor J.J. White to write an Amicus Curiae brief supporting his right to appoint Justice Riley until the next general election, but the main work was to be done by the firm of Buesser and Buesser of Detroit.

The firm consisted of the two sons of Fred Buesser, Jr., an old and dear friend of both Wally and Dorothy Riley. Fred had been Wally’s campaign manager when he was elected President of the American Bar Association.

He was a good lawyer as were his sons, but their specialty was domestic law, not constitutional law.

I decided to butt in.

I called Fred III. Could they use some help? I wasn’t looking for compensated legal work. I was offering to donate my services. I felt strongly about the case.

Fred was gracious, but firm in the position that they had everything under control.

I told him I had done a little preliminary research. I asked him if he planned to argue that the Supreme Court didn’t have the power to remove a judge.

Now, after nearly thirty years, I cannot call up the exact words of our conversation, but I distinctly remember that he declined my offer and insisted that they were confident of their argument.

What bothered me was that he seemed willing to concede that the Supreme Court does in fact have the constitutional authority to remove a judge, and that the issues framed by the Attorney General were the only issues involved in the case.

Article 6, Section 4 of the Michigan Constitution of 1963 provides:
The supreme court shall have general superintending control over all courts; power to issue, hear and determine prerogative and remedial writs; and appellate jurisdiction as provided by rules of the supreme court. The supreme court shall not have the power to remove a judge.

Article 6, Section 4 is the only place in the constitution which gives the Supreme Court any power. It gives the court three and only three kinds of power: Superintending control. Prerogative and remedial writs. Appellate jurisdiction.

So the constitution, ratified by the people, says to the Supreme Court:

You cannot remove a judge.

You cannot remove a judge when superintending the courts.

You cannot remove a judge with a prerogative or remedial writ.

You cannot remove a judge on appeal.

In short, the people have said to the court, you cannot remove a judge at all. Ever. For any reason. On any theory.

January 24th was marked on the calendars of the Lansing press corps. And the TV News departments. They crowded the courtroom, looking for clues from the arguments of counsel, from the questions of the Justices.

I was wondering, too.

What would the Attorney General argue? That ouster is not removal? That a justice is not a judge? That Dorothy Riley is not in fact a judge at all?

The debate went on for nearly an hour.

The briefs comprised hundreds of pages.

Nobody mentioned Article 6, Section 4. It was the proverbial elephant in the room. Too big not to be obvious, but somehow ignored by everyone.

I hoped for Dorothy’s sake that the elephant wouldn’t be needed.

THE BATTLE BEGINS (Number 8)

2011-02-27T22:05:00.000-08:00

The Capital press corps were all there, crowded into the lobby outside the courtroom on the third floor of the Law Building.

Even the TV crews.

There would be no cameras allowed in the courtroom, but they were hoping to catch the lawyers on the way in or out. Get a sound bite. Get something.

It was a Saturday morning. Nobody remembered the Supreme Court conducting a hearing on a Saturday. Ever.

But this was different. The Attorney General was trying to oust one of the justices of the court. The Democrat Attorney General. A justice appointed by a Republican Governor. It was political. It was juicy. And besides, it was Saturday, and nothing else was going on.

It had been only five days since the AG had filed his lawsuit in the Court of Appeals. When he did, he asked that the matter be immediately transferred to the Supreme Court.

Whether to by pass the lower court; that was the only issue.

Louis J. Caruso, the State Solicitor General argued on behalf of Frank Kelley.

An experienced and knowledgeable appellate advocate, Caruso made a solid legal argument, showing how the case met all the requirements for granting by pass specified in the Court Rules.

His main thrust was simple. This case will come to this court for final decision anyway. Let’s not drag it out. It’s not in the public interest.

Dorothy’s lawyer, Fred Buesser, on the other hand, was a fish out of water.

A prominent divorce lawyer, Buesser appeared as counsel in every celebrated marital break up in southeastern Michigan. But those things rarely got to the Supreme Court. Fred’s forte was negotiation, not advocacy.

He stumbled, he hemmed and hawed. He rambled. And he really stepped in the goo-goo when he suggested that the court itself was responsible for creating an atmosphere of public crisis, which, he insisted was entirely artificial and unnecessary.

No doubt Buesser’s approach reflected what Dorothy and Wally Riley had expected would be the case; that her colleagues on the court would be inclined to defend her, to give her the benefit of the doubt.

Mike Cavanagh had been her colleague on the Court of Appeals. Giles Kavanagh and Chuck Levin were also alumni of that court, where there was a great sense of fellowship and fraternity. In its nearly twenty year history, no incumbent Court of Appeals judge had ever been defeated.

Party labels were unimportant there. They were all elected as non partisans, and tended to think and act that way.

But if Dorothy herself was naïve, her lawyer didn’t have a clue.

He belabored the fact that Dorothy was a member of the court under color of law, such that her participation in the work of the court, though obviously not in her own case, could not be challenged by any of the litigants.

Good law, of course, with plenty of precedents to back it up.

Finally, he unloaded his best argument. Get a decision in the lower court so that if there is a tie vote in the Supreme Court, the lower court decision will stand.

Returning to the podium for rebuttal, Caruso was asked about the possibility of a tie vote.

His answer foreshadowed the disaster that awaited the people of Michigan.

“I don’t know. I just simply hope that it doesn’t happen. But it’s a problem this Court is going to have to deal with. I have no solution.”

A NEW CHIEF (Number 7)

2011-02-04T18:11:00.000-08:00

Excluding family, Jim Ryan is my oldest and dearest friend on the planet.

He is now a retired United States Court of Appeals Judge. Very distinguished.

As a college boy in the 1950’s, he used to come to our house on Sunday nights to sustain himself on Polly’s meat loaf and while away the hours afterward discussing life, love, marriage and the law.

When he came home from the navy, he joined our boot strap law firm. After I went on the Common Pleas Court Bench, he was elected Justice of the Peace.

I became a Circuit Judge. He became a Circuit Judge.

I went on the Supreme Court. He went on the Supreme Court.

I started a law school. He joined the Board of Directors and started teaching.

It has been my privilege to introduce and eulogize him on a number of occasions, and he has often returned the favor.

So I suppose it was only natural that in January of 1983, he agreed to be a candidate for Chief Justice.

The court met in the old Lafayette Building in downtown Detroit. It was only days after Dorothy Riley had been excluded from discussion about her status.

Ryan’s effort was hardly an example of political skill. Jim Brickley, an old friend and fellow Republican, would make the nomination. Dorothy Riley would add her support.

A fourth vote would have to come from somewhere.

Chuck Levin? The nominal independent who had supported Mary Coleman and John Fitzgerald in 1982? Was he really opposed to Soapy?

Giles Kavanagh? Though they were fellow Democrats, there was no love lost between him and Soapy. And he had also been party to the uprising that put Mary in the center chair.

Whatever scenario Ryan had hoped to see unfold on that January morning in the old Lafayette Building, he was quickly disabused of it when the issue was raised about Dorothy’s competence to participate in the election of the Chief Justice.

Once again, and with sugar coated condescension, it was suggested that it might not “look good” if Justice Riley participated in view of the Attorney General’s lawsuit.

When a majority chased her from the room, humiliated, Ryan knew he would have no chance to be the next Chief Justice.

After the vote was taken and Soapy had been elected by a vote of four to two, Giles Kavanagh, always a cheer leader for collegiality, suggested that, for the record, the vote should be made unanimous.

Ryan said no.

After the conference Jim Brickley pulled Ryan aside.

“We’re going to have to learn how to count better,” he offered with a smile.

Ryan thanked him for supporting a losing cause. A lesson had been learned. In the Michigan Supreme Court the name of the game is ‘four votes.’

It was just another instance of the rampant partisanship that infected the court.

Now it would be a six member court for as long as it took to decide the Attorney General’s challenge to Dorothy.

Soapy had his court. He was the leader. He was the boss. But at what cost?

Years later, recording an oral history of the court, Jim Ryan reflected on those days.

“Dorothy was deeply hurt and she was sure we were wrong, and I was sure we were wrong, and we, with that stroke, went a long way toward destroying the superb relations that the members of the Court had one to the other over the whole of the years I was there.”

A GENTLE TIGER (Number 6)

2011-02-04T05:35:00.000-08:00

It is not widely known, but the second woman to serve on the Michigan Supreme Court was also the first Hispanic.

Josephine Grima was born in a suburb of Mexico City. She studied nursing at the University of Indiana and found work as a nurse at the veteran’s hospital in Battle Creek, Michigan.

There she met Charles Comstock who had returned from service in World War I. They married, moved to Detroit and on December 6, 1924 became the parents of little Dorothy.

She was a pretty, petite package, and stayed that way all her life.

The very definition of diminutive, she stood barely taller than five feet and didn’t weigh 100 pounds in her overcoat.

Attractive and popular, she was elected homecoming queen at Wayne State University before going on to law school there.

When she graduated in 1949, she was a rarity. The only females in law firms were the secretaries. Undaunted she opened her own law office, and made it work.

She met and married Wallace D. Riley, a mountain of grace and girth, himself an accomplished member of the bar, who was elected President of the State Bar of Michigan and eventually President of the American Bar Association.

Dorothy began her public service as an assistant Wayne County Friend of the Court. From there, she became a Circuit Judge, then a Judge of the Michigan Court of Appeals.

Soft spoken and unassuming, she nevertheless harbored a will of steel and the tenacity of a tiger.

New Year’s Day in 1983 was on a Saturday.

She spent several hours at her office over the week end, preparing for the January term of court. She had studied all the cases on the docket. She had read the briefs. She would be ready to hear the arguments of counsel. To ask probing questions. To seek truth and justice in every case.

Still, there was this uneasiness. The sense of foreboding.

She wouldn’t have long to wait.

By daybreak on Monday, her phone was ringing. The press wanted to have her reaction to the suit filed by the Attorney General to remove her from the Supreme Court.

In typically demur fashion, she declined to comment. She knew nothing of the suit, hadn’t seen it. But don’t bother to call again. She would not comment on this or any other pending litigation.

By early afternoon, Harold Hoag, the efficient ex navy officer who served the court as its chief clerk, called. He was arranging a telephone conference of the justices. To deal with the crisis. To talk about her. The very thought of it sent chills down her spine, and prompted a nauseous taste under her tongue.

Soon, too soon, they were all on the phone. Her colleagues. Her co-workers. Jim Ryan. Jim Brickley, Mike Cavanagh, Chuck Levin, Tom Kavanagh, Soapy Williams.

And they were talking about her.

She was no longer a colleague. She was a case. She had resigned a secure position on the Court of Appeals to come to the Supreme Court. She loved being an appellate judge. She was good at it. And respected by bench and bar.

Now she was just another Defendant.

Someone suggested she ought not to be sitting in on a discussion of the Attorney General’s law suit. It didn’t look good.

She hung up the phone. A woman would be entitled to cry. Not Dorothy.

KELLEY'S THEORY (Number 5)

2011-02-03T19:08:00.000-08:00

I always liked Frank Kelley.

We were both hot shot young Irish lawyers in Detroit over half a century ago. Frank loved to preside at the middle table in Jacoby’s Bar across from the Wayne County Building during the morning coffee hour.

His quick wit and disarming smile always assured him an attentive audience, and the more they listened, the more he talked.

1961 was a good year for both of us.

I was elected Judge of the Common Pleas Court of Detroit. He was appointed Attorney General of Michigan by Governor John B. Swainson.

Frank lasted a lot longer than I did as a public servant.

When he retired in 1998, he was the longest serving Attorney General in the United States. Ever.

Frank Kelley was, and at age 86, still is a damn good lawyer. But he is a better politician. Always was. You don’t get elected 10 times with both Republican and Democratic Governors unless you know how to play the game.

And Frank knows how.

Somehow the Attorney general’s office came to be interested in the presence of Dorothy Comstock Riley on the Supreme Court. Whether it had anything to do with the research that found its way to the wastebasket outside of Soapy’s offices, no one will ever really know.

Call me naïve, but I never infer impropriety with respect to the actions or decisions of public officials. I assume, as I think all citizens should, that elected officials do what they do because they perceive it to be their duty.
Whether their perception of duty is accurate or not is always a matter fairly to be debated, but their motives are not relevant.

I have no doubt that the genesis of the lawsuit was political. On the face of it, the letter of appointment from Governor Milliken was in standard form. It was cast in the language of Section 23, Article 6 of the state constitution. It told Dorothy Riley that she was appointed to serve until after a successor to Justice Moody was elected in November of 1984.

There was an old case on the books in which the court refused to oust an appointed judge in a similar situation.

You had to go looking in the law library to find a basis to challenge Justice Riley.

Certainly the Attorney General was as dismayed as Justice Williams over the fact that Governor Milliken was making lame duck appointments to the bench. Kelley had lived with the Republican in the Governor’s mansion for fifteen years. He must have been ecstatic to anticipate working with fellow Democrat Jim Blanchard.

The first linchpin of Kelley’s theory came from a “what if” scenario. What if John Fitzgerald had died instead of Blair Moody?

In the November election, Michael Cavanagh was elected to succeed Fitzgerald. He was waiting for January first to be sworn in. Certainly the constitution wouldn’t deprive him of the office just because his predecessor died.

Ergo, the constitution doesn’t always mean what it says.

Or, what if Mike Cavanagh had died?

Would John Fitzgerald have continued to be a Justice of the Supreme Court until after the next election? Fitz hadn’t resigned. He just didn’t run for reelection.

The Attorney General’s research staff dug deeper. The constitution says that Supreme Court justices serve for an eight year term. Period. They are not authorized to hold over until a successor is elected.

So Fitzgerald could not have stayed on after his eight year term was over. And neither, Frank Kelley would argue, could Dorothy Comstock Riley.

MUSICAL CHAIRS (Number 4)

2011-01-30T16:22:00.000-08:00

In December,1982 the Supreme Court of Michigan was in a state of flux. The seats were being emptied and filled like a children’s party game. But without the music.

John Fitzgerald, son of Depression era Governor Frank Fitzgerald was appointed in 1974 and elected to a full eight year term that autumn.

A scholarly gentleman and a popular teacher, John was instrumental in the organization of the Thomas M. Cooley Law School and very much enjoyed the interchange with students.

So he decided not to run for reelection in 1982. In December, he was living out the last days of his term.

Mary Coleman, unexpectedly announced her retirement after serving only two years of an eight year term.

Despite the pleas of some around the table, she decided to resign effective December 27 so that outgoing Republican Governor Bill Milliken could appoint her replacement.

She did and he did, sending his Lieutenant Governor, one time President of Eastern Michigan University, James H. Brickley to the court.

Four days later, newly elected Justice Michael Cavanagh would be sworn in. And of course, there was Blair Moody’s replacement, Dorothy Comstock Riley.

The partisan count was back to three against three. And Levin.

For a veteran of the political wars like G. Mennen Williams, the world had turned upside down. Blair Moody had been elected in a landslide. His seat belonged to the Democrats. Dorothy Riley had been specifically rejected by the voters in the same election.

The people had just elected a Democratic Governor. To Soapy, that meant that the people wanted a Democrat to be making judicial appointments. Milliken was finished, living out the last days of his term. He had no mandate. He had no business making last minute appointments that would determine the course of the Supreme Court for years to come.

It wasn’t right. And Soapy knew right from wrong.

So would Frank Kelley.

Frank had been the state’s chief law enforcement officer for so long he was known as the Eternal General of Michigan.

A Democrat down to his socks, Kelley would surely agree that the Riley appointment didn’t pass the smell test.

Of course, he would have to admit that the warrant of appointment from Governor Milliken said Riley was to serve until January 1, 1985, after a successor to Justice Moody was elected in 1984.

That’s what the letter said. And that’s what the constitution said.
“…until 12 noon of the first day of January next succeeding the first general election held after the vacancy occurs…”

But words in a constitution are sometimes ambiguous. Sometimes they need explaining by smart lawyers and top notch law clerks.

In those days, the Supreme Court maintained a suite of offices in the Lafayette Building in downtown Detroit. Soapy had an office there. That’s where they put Dorothy Riley.

Around Christmas time, Dorothy told her husband that her clerk had found some interesting things in the waste basket next to the copy machine.

Draft copies of a brief arguing for her removal.

They were going to try to get her off of the court.

PICKING THE CHIEF (Number 3)

2011-01-30T11:12:00.001-08:00

In January of every odd numbered year, the justices of the Michigan Supreme Court elect a Chief Justice.

That’s because in November of the even numbered years one or two of the justices are up for election, and if the court personnel changes, there just might be a new leader.

It wasn’t always that way. For about a hundred years prior to 1956 the justices rotated the job.

Chuck Levin often suggested that they go back to the old way. You can’t blame him. As the only real independent on the court, rotation was about the only way he would ever get to sit in the center chair.

From 1971 until 1975, Justice Thomas M. Kavanagh was the Chief. We used to call him Thomas the Mighty. In January of 1975, he was succeeded by his namesake, Thomas Giles Kavanagh. Thomas the Good.

By 1977, the political complexion of the court had changed. Now there were three Republicans, three Democrats, and Levin. Giles Kavanagh was reelected Chief Justice.

Soapy was still waiting. Blair Moody, Jr. was solidly in his corner. His father had been appointed United States Senator by then Governor Williams.

Then came the rebellion of 1979.

Kavanagh decided to step aside as Chief Justice, but not in favor of Soapy. He and Chuck Levin jumped ship to install Mary Stallings Coleman. The first woman elected to the court now became the first woman to be chosen Chief Justice by her colleagues.

As liberal as Soapy was, and as committed to women’s rights, Coleman was still junior to him. And he wasn’t invited to the restaurant where the decision was made.

So he waited.

In November of 1982, when Democratic nominee Michael Francis Cavanagh was elected, to succeed Republican John Fitzgerald, Soapy could count four votes, even without Justice Levin.

Now it would be Soapy’s turn to lead. The middle chair would be his. He had earned it. He deserved it. He wanted it.

And this time, he would have it.

Being Chief was important to him. Twelve years in the Governor’s mansion gave him unique experience as an executive. He knew how to get things done, how to manage people, how to inspire them, how to use them.

The state provided each justice with a law clerk. Soapy wasn’t satisfied. He hired two more clerks with his own money. He would hold meetings, delegate tasks, synthesize their efforts.

His opinions had the ring of executive white papers. He would argue with eloquence what he believed to be the right thing to do. If the precedents didn’t easily line up with his view of justice, he marshaled his considerable intellectual powers and the help of his staff to get where he wanted to go.

Then the unthinkable happened.

On the day after Thanksgiving, after celebrating and giving thanks with his wife and five children, Blair Moody died.

On December 9, 1983, Republican Governor William Milliken appointed Dorothy Comstock Riley, who had lost by a quarter of one percent of the vote to Mike Cavanagh two weeks before, to fill the Moody vacancy.

BOW TIE POLITICS ( Number 2)

2011-01-29T19:57:00.000-08:00

Everybody called him ‘Soapy.’

His real name was Gerhard Mennen Williams. His father was a minister, his mother CEO of the Mennen Company which manufactured shaving cream and other toiletries.

As a boy, he had been sent to a ranch in Wyoming one summer along with his two brothers. The cowboys nicknamed them Suds, Lather and Soapy. Soapy stuck.

Soapy was from Grosse Pointe. The old Grosse Pointe, before it was overrun with newly rich automobile makers.

At age 14, he was shipped off to Salisbury prep school in Connecticut, where he was seen as an oddity: a Midwesterner with breeding. At Salisbury, Soapy earned the highest grade point average of any student, before or since.

Then it was off to Princeton in 1929. There he skied, wrestled, played basketball, rowed on crew, won two varsity football letters, made Phi Beta Kappa, and….

And was elected president of the Young Republicans.

At the law school of the University of Michigan in the mid 1930’s, the talk was all about the New Deal. Idealism was the mood of the day. Utopia was on the horizon.

Soapy was converted. He became a Democrat. He would go into politics. He would make a difference.

His rise in Michigan politics was meteoric. The protégé of Governor Frank Murphy, he was on the inside track even before enlisting in the Navy, where he earned 10 Pacific battle stars and the Legion of Merit, mustering out in 1946 as a lieutenant commander.

By the summer of 1948, as the Democratic nominee for Governor of Michigan he made his national television debut as a feisty opponent of the Dixiecrats at the national convention.

Always a great campaigner, his enthusiasm for pressing the flesh was matched by his knack for calling square dances. The unions delivered the big cities, while Soapy charmed the farmers and the small town Republicans.

And he won. At a time when Michigan governors served two year terms, Soapy amassed six consecutive victories from 1948 through 1958.

On September 15, 1952, the cover of Time magazine featured the handsome face of Soapy Williams, his patented green polka dot bow tie, broad toothy grin and steely blue eyes surrounded by champagne bubbles.

The cover story called him a prodigy and recounted how people had predicted he would one day be President of the United States.

In fact, he went to the 1952 Democratic convention at the head of a Michigan delegation which had adopted him as its favorite son. When the choice came down to Illinois Governor Adlai Stevenson or Tennessee Senator Estes Kefauver, Williams and Michigan opted to support the Senator.

Perhaps he thought he had a better chance of being tapped for Vice President by someone who didn’t come from just across Lake Michigan.

He served his country and his party in various capacities during the Kennedy years.

Finally, he decided to cap off his career as a Justice of the Michigan Supreme Court. He was elected in 1970.

I first met Soapy Williams in 1959. I was hosting an Irish fundraiser on Saint Patrick’s Day to boost my unsuccessful campaign for judge in Detroit. Soapy stopped by to greet a group of Young Democrats who were gathering down the hall, and I went down and invited him to come and meet our people.

He came, was gracious, and made a big hit.

We served together on the court for three years from 1971 through 1973. I found him to be a warm and thoughtful colleague.

More than that, he was a man of sound morals, dedicated and committed to public service. He was a leader in the classic Protestant mold; ambitious for power and authority, but solely for the purpose of doing good as he saw it.

Soapy was a good man and he knew it. Being conscious of his own rectitude gave him a certain messianic determination to be the boss.

In the Supreme Court that meant being Chief Justice. And Soapy wanted it.

PARTISAN JUDGES (Number 1)

2011-01-29T03:11:00.000-08:00

Used to be, judges were either Republicans or Democrats in Michigan.

Then along came 1932. Franklin Delano Roosevelt was elected President of the United States by a wide margin. Michigan went Democrat big time.

Not everyone was ready for it. A couple of old time Dems woke up to find that they had been elected to the office of State Representative and bought railroad tickets to Washington D.C. instead of Lansing.

One group that got a rude awakening was the judges. Michigan had been a Republican state and most of them were staunch members of the majority party. But in the 1932 landslide, a number of incumbents were ousted.

What to do?

Change the constitution. Make judges non partisan. Give incumbent judges the benefit of a designation on the ballot that would let the voters know who they were.

The system has worked pretty well. Incumbent judges and their challengers are welcome in the halls of both political parties, and while the “us and them” mentality of American politics is still at work, there is a certain aura of civility associated with non partisan elections which is suited to judicial office.

The one exception is the Michigan Supreme Court.

Unhappily, when the constitution was amended to make judicial elections non partisan, it left the matter of nominating candidates for the Supreme Court to the legislature.

And what did they do?

They did what legislatures do best. Nothing. They did nothing at all. They simply left the matter of nominating candidates for the Supreme Court the way it was under the old, party convention method.

So while candidates for the Supreme Court are rotated alphabetically on the non partisan ballot, they must first be nominated by the political parties.

And they never forget it.

Even when, as incumbents running for reelection, they are entitled to get on the ballot by a simple affidavit nominating themselves, they still go back to their party conventions. That’s where the money is.

As a result, justices of the Michigan Supreme Court are commonly regarded as Republicans and Democrats. And they tend to act that way.

Back in 1982, the court consisted of four Democrats, two Republicans, and a maverick.

The maverick was a man named Charles Levin.

His father had been a federal judge in Detroit. Two cousins, Sander and Carl were successful members of the United States Congress. Both Democrats.

But Charles never got into partisan politics. He wanted to be a judge like his father. So he ran for the Court of Appeals, where candidates are nominated by circulating petitions.

He was elected, served several years and then decided to run for the Supreme Court. He couldn’t get the nomination of the Democratic Party so he circulated petitions and started his own party, held a convention in his basement and got himself nominated.

And was elected.

The Democratic majority on the Supreme Court back in 1983 did what majorities always do. They elected their own guy as Chief Justice.

His name was G. Mennen Williams.

He would preside over the Supreme Court of Michigan on the darkest day in its history.

DEFEND THE UNION!

2011-01-12T12:32:00.000-08:00

The United States of America is a Union of fifty sovereign states.

It is the duty of our federal government to represent our Union and to protect the states from incursion by foreign nations.

That’s not what’s happening in Arizona. The forty-eighth state of our Union is being sued by our federal government.

And if that were not bad enough, our federal government is now joined by eleven foreign countries to gang up on the State of Arizona and undo a law passed by its legislature and signed by its Governor, Jan Brewer. A law intended to protect her constituents from a tide of people entering the State in violation of federal immigration laws.

That’s right. The New York law firm of Dewey & LeBoeuf has filed an Amicus Curiae brief on behalf of the nations of Mexico, Argentina, Bolivia, Brazil, Chile, Costa Rica, Ecuador, El Salvador, Nicaragua, Paraguay and Peru protesting the new law which seeks to protect the citizens of Arizona from the hostile invasion of illegal immigrants.

I haven’t researched this point, but I must confess that the idea of the Federal government suing to declare a state law unconstitutional, strikes me as a pretty big stretch of the powers delegated to the politicians and bureaucrats in Washington D.C.

If the Arizona law is unconstitutional, someone who is affected by the law, and who therefore has a right to challenge it, will surely do so, and the courts will have their proper jurisdiction.

But the United States Constitution gives the federal courts authority only to hear actual cases and controversies. There is no such thing as an advisory opinion in a Federal Court.

U.S. v Arizona is essentially a political debate. It is an abuse of process to start a lawsuit just to get publicity or to influence public opinion.

If you’re getting the idea that I don’t have much regard for Mr. Holder’s lawsuit, you’ve got it right.

But it strikes me that there is a larger issue here.

Larger even than the unhappy business of our Department of Justice being used to wage political war against the sovereign State of Arizona.

By what right, by what precedent, by what modicum of decency should foreign nations be permitted to gang up on a State of the American Union?

Our fifty states have a lot of differences to be sure.

We’ve got red states and blue states, and lots of shades of purple states.

But when our Union is attacked, when outsiders come in and try to mess with one of our sister states, we are, as we must be, united. Shoulder to shoulder. One for all and all for one.

Amicus Curiae is a Latin term for Friend of the Court. A brief Amicus Curiae is a brief filed by someone who is not a party to a lawsuit, usually someone who feels that the outcome of the lawsuit will affect them in some way.

Courts don’t allow just anyone to file an Amicus Curiae brief. The trial judge or appellate panel must conclude that an Amicus Curiae brief will be helpful; that it will present arguments or perspectives which may not otherwise be considered.

While you don’t have to have an actual dog in the hunt, you do have to have something to say about it that will help the court.

I ask myself, should all those South and Central American nations have something to say about illegal immigration into the State of Arizona?

If the laws of Arizona are in fact contrary to the constitution of the United States, what business do Argentina and Bolivia and Paraguay have to complain?

If a citizen of Nicaragua is detained in Phoenix, whether legally or illegally, there are standard diplomatic channels for the Nicaraguan government to pursue.

An illegal immigrant, as much as any other defendant faced with criminal charges has a right to counsel and a constitutional right to a speedy and public trial. If the law under which he or she has been charged is unconstitutional, that defense can be raised. But the defendant’s native land is not a party to the case.

When we punish illegal immigrants who violate our laws, we are not making war against their native lands. When they enter our shores, whether legally or illegally, they become subject to the jurisdiction of our courts and the enforcement of our laws.

The involvement of foreign governments in our immigration dispute is a terrible thing. To permit foreign powers to inveigh against a State of our Federal Union, is to tolerate a state of hostility.

It is time for the other forty-nine States of the American Union to stand up and be counted.

It matters not whether they agree with Arizona, or approve of the statute in dispute.

But no State worthy of the title sovereign can stand by and let these foreign nations invade our courts to do battle against one of our sister states.

I intend to send this blog to the Attorney General of every State and urge them to file Amicus Curiae briefs opposing the participation of foreign governments in U.S. v Arizona.

I ask all my readers to join me in this effort.

It’s time for us to defend the Union.

FEDERAL PARALYSIS

2011-01-09T18:16:00.000-08:00

The Sixth Amendment to the Constitution of the United States provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The Constitution doesn’t say that the public are also entitled to a speedy trial. Maybe the Founders felt that public outcry would be enough. Or maybe they thought that public officials could be counted upon to carry out their sworn duty to enforce the law.

The Founders didn’t know Eric Holder.

Nidal Hasan murdered thirteen people in Texas on November 5, 2009. Fourteen months later our impotent federal bureaucracy hasn’t even decided whether to court marshal him, or if so, when.

I have a hunch that if Hasan had been left to the tender mercies of the Bell County Sheriff and Prosecuting Attorney he would have long since been convicted by a “jury of the State and district wherein the crime shall have been committed” as required by the Sixth Amendment.

Khalid Sheik Mohammed was arrested on March 1, 2003. He has yet to be brought to trial, despite confessing to have launched the 9-11 attack on the United States.

These are some of the thoughts that passed through my mind when Shepherd Smith revealed that the Federal Bureau of Investigation had taken charge of Jared Lee Loughner, the deranged 22 year old man who shot Congresswoman Gabrielle Giffords in the head and murdered Federal Judge John M. Roll and five other people.

Is it unduly cynical to fear that the Feds will dink around with the case while political hucksters write stories about the danger to our nation posed by right wing extemists?

At least until after the 2012 elections.

Christina Taylor Green, the nine year old girl murdered yesterday in Tucson, was born on September 11, 2001, and lived from slaughter in New York to slaughter in Arizona.

I doubt that her killer will ever be tried, convicted, sentenced and executed under Arizona law.

It’s a damn shame.

How sad it is that, in our age of information and opinion overload, the wheels of justice get bogged down in a mud slide of commentary and analysis.

The simple issue of fact, whether a crime has been committed and who did it, is somehow overshadowed by all the conversation.

The focus on understanding why the crime was committed and trying to assure that it doesn’t happen again gets all the media attention.

Bringing the perpetrator to justice goes on the back burner.

To my old fashioned way of thinking, swift and certain punishment is still the most effective way to deter crime.

The idea that we can somehow, through education, media attention, bodyguards, technology, video cameras, xrays, scanners, trained dogs or psychiatric profiling, prevent future massacres like Tucson or Fort Hood is a fools mission.

There is human evil in the world, just as surely as there are hurricanes and tornadoes

As long as human beings have free will, they have the potential to do evil. No right thinking man or woman would surrender the faculty of their free will in exchange for protection from danger.

Nor would we tolerate the mutation of human brain waves to assure robotic obedience to authority.

So we have to live with mad men and bad men. With insanity and vice.

The opposite of vice is virtue. The antidote for sin is hellfire and brimstone.

A peaceful, just and secure society can only be built on morality, and morality can only proceed from religion.

It is the office of religion to teach the difference between right and wrong. To develop a moral compass. To encourage the intellectual function we know as conscience.

When we chisel the Ten Commandments off of the keystone above the courthouse door, we sever our ties with the Judeo Christian culture that informed our ancestors’ notion of right and wrong.

Then what do we have?

No more “Thou Shalt Not Kill?”

Of course not. Someone might be offended.

How about a Presidential Study Commission on the Causes of Terrorism in Modern Society?

Just the kind of hand wringing thing our federal government does so well.

I can’t wait.

CONGRESSIONAL PAY RAISES

2011-01-02T05:56:00.000-08:00

Back in 1982 a student at the University of Texas, researching the federal constitution for a term paper, stumbled onto a constitutional amendment proposed by the Congress in 1789, but never ratified by the states.

There was no deadline for ratification in the proposal, so Gregory Watson wrote his paper arguing that the amendment could still be ratified.

He got a “C.”

The professor thought it was just ridiculous to suppose that a proposal that was advanced by Congress 193 years before was still active.

Watson disagreed.

To prove his point, he started writing letters to the state legislatures. Within a year, Maine ratified the amendment, then Colorado. In 1992 Alabama became the 38th state to ratify and the 27th Amendment was born.

The Professor still refused to change Watson’s grade.

Here’s what the 27th Amendment to the United States Constitution says:

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

In short, it prevents members of Congress from feathering their own nests; giving themselves a pay increase. They have to go back to the voters and get reelected before their paychecks are sweetened.

At least that is what everybody who worked to get the 27th amendment ratified believed.

But you gotta hand it to those Congressmen. Where there’s a will, there’s a way. They had plenty of will, so they came up with a clever way. They adopted COLA for themselves. COLA; that’s short for Cost Of Living Adjustment. Just like the unions.

Talk about clever. They included their COLA in a law they called The Ethics Reform Act of 1989. They could see the ratification of the 27th Amendment coming.

Apparently, they thought the ethical thing to do was to hurry up and give themselves an automatic annual raise before the 27th Amendment became the law of the land.

Oh, and by the way, the computation of their COLA included the provision that the annual adjustment could never be less than zero. Up every year, but never down.

To his credit, Gregory Watson didn’t give up. He and a few others brought an action in federal court to challenge the congressional COLA as a violation of the new 27th Amendment.

A federal District Court Judge in Colorado decided that the COLA, having been adopted before the amendment, was perfectly all right.

Watson and friends appealed to the United States Circuit Court of Appeals. The appeals court said they couldn’t take the case, because the plaintiffs didn’t have ‘standing’ to complain. The United States Supreme Court agreed, and refused to hear the case, too.

It’s a sad story. The general public was, and still is, overwhelmingly in favor of limiting the power of the politicians to increase their own compensation.

But what about COLA? Should their salaries by increased to reflect the cost of living?

Most Americans like COLA. They figure inflation isn’t their fault. They see their buying power going down, their savings shrinking in value, and they want to make more money to keep up.

But the first premise doesn’t apply to members of Congress. Inflation is their fault. The devaluation of currency is their fault. The cheapening of the dollar is the direct consequence of wild and irresponsible spending by the government in Washington.

I believe that the compensation of members of Congress should be spelled out in the Constitution. In dollars and cents. No adjustments. No power to give themselves or their successors a raise.

Why? Very simply because the Constitution of the United States gives the Congress the exclusive power to coin money. The power to coin money carries with it the responsibility to assure that the money which is coined is a stable and reliable medium of exchange.

Inflation is the most regressive form of taxation. It takes from the rich and poor alike. It impunes every contract. It invades every savings account.

How does it make sense to protect members of Congress from the inflation which they, themselves, have suffered to be visited upon their constituents?

If the compensation of members of Congress is fixed, their personal self interest will best be served by legislation which protects and even enhances the value of the dollar.

Fixing the compensation of members of Congress is an important first step in establishing a balanced budget and retiring the national debt.

And while we’re about it, we ought to close off another avenue of self aggrandizement. The House and Senate should be forbidden to pay extra money to the Speaker of the House, the President Pro Tem of the Senate, the majority and minority leaders of both houses and the chairmen or members of any committee.

It’s time to remind elected officials that they are public servants and not rulers.

ECONOMICS 101?

2010-12-21T08:34:00.001-08:00

October 20, 2010 was officially designated national “Spirit Day” by the organization in charge of designating official days to be observed throughout the land, the Gay and Lesbian Alliance Against Defamation.

The observance was prompted in part by the suicide of Tyler Clementi, a Rutgers University freshman who jumped off the George Washington Bridge after his roommate published a video of him having same sex sex.

So, of course, many students at the Howell, Michigan High School wore purple to show their opposition to school yard bullying at least, or especially, when the person being bullied is homosexual.

So did the Economics teacher, one Jay McDowell, who also happens to be the head of the local teachers union.

Enter a member of the class, allegedly a young lady, wearing a belt buckle designed as a replica of the Confederate flag. Mr. McDowell, asked her to remove it, which she did.

Whereupon one David Glowacki, taking the clue from the teacher that the study of economics would be delayed until political and social issues were thoroughly explored, inquired as to why the belt buckle was to be sequestered when there were so many other visible, purple indicia of opinion in the classroom.

True to the liberal creed of selective censorship, Mr. McDowell proceeded to lecture Glowacki and his classmates on the difference between symbolic speech which is acceptable, i.e. support for gay rights, and symbolic speech which was unacceptable, i.e. sympathy for the defeated and discredited Confederate States of America.

The difference, Mr. McDowell explained to his young charges was that gay rights symbols were supportive of something decent folks ought to be in favor of, while the Confederate flag was symbolic of something decent folks ought to be opposed to.

Unconvinced, Mr. Glowacki revealed that he was not in favor of gays and that in fact his religious persuasion included a belief that homosexual liaisons were sinful.

Taken aback by such impudent disavowal of secular humanistic orthodoxy, Mr. McDowell took the only course of action which would assure that no further such heresy would sully the ears of his economics students.

He invited Mr. Glowacki to take a walk. Get out of the room. Disappear. Which is what Glowacki did.

Not to be overlooked, another student spoke up and asked if, in view of his similar opinion, he might also be permitted to adjourn to the corridor. Be gone, said McDowell.

The two exiles ended up getting minor disciplinary demerits.

End of story? Not hardly.

Enter the higher ups of academic administration. The school board promptly suspended Mr. McDowell for one day with and one day without pay. His crime: punishing a student who disagreed with him.

The leader of the teacher’s union was not about to accept such a sentence without a fight. He informed the school board that unless they withdrew the punishment, he would take his case to the media and the public uproar would bring the board to its knees.

In the tradition of all school boards, they listened and then voted no.

And so the issue was joined. At the next board meeting Mr. McDowell was favored by the support of a new, unlikely champion; a 14 year old gay lad from another school district, one Graeme Taylor, who made an impassioned presentation excoriating the curse of schoolyard bullying of gay, lesbian, bisexual, transsexual, questioning and sexually ambivalent students during which he revealed that he himself had seriously considered suicide at the age of nine.

It was heart rendering human drama that instantly filtered to the breaking news department at MSNBC.

Taylor’s speech was immortalized on video and promptly displayed on the Internet where 13,000 people saw it before the Livingston County Press and Argus got it pulled to protect their copyright.

Mr. McDowell’s predictions came to pass. Bags of mail, megabites of email, phone calls and blogs from around the country came forward to bolster his appeal, encourage him to litigate and generally debunk the reactionary school officials as nothing but a bevy of small town Republican bigots and homophobes.

I looked long and hard to find out what the American Civil Liberties Union had to say about the affair.

It seemed to me that Mr. Glowacki had a first amendment right not only to believe what he believes about homosexuality, but to express his beliefs publicly without being punished or bullied by the authorities.

The most I could find was a footnote that someone from the ACLU had suggested that the whole thing was a teachable moment and it might have been a better opportunity to teach if the students had been allowed to stay in the classroom.

With such courageous defenders of our first amendment rights at the ready, what have any of us to worry about?

And anyway, isn’t it reassuring to realize that in these difficult economic times, our children are learning so much about the economy?

CHRISTMAS TEARS

2010-12-16T21:34:00.001-08:00

She was twenty-one. A pretty girl, in a corner booth at the Motor Bar of the old Book Cadillac Hotel in downtown Detroit. It was nearly Christmas, and she was alone.

Really alone. Her father, a fifty-nine year old German immigrant, had died in her arms two months before. He had been her only family after her mother died and both her brothers were killed.

She was engaged to be married, but her fiancé was across the street at an office Christmas party.

And so her cocktail was salted with Christmas tears.

That was sixty years ago.

We have celebrated the birth of the Christchild in 15 different houses since then. There have been plenty of squeals of delight and shouts of joy, gasps of surprise and smiles of contentment.

But it seems there are always some tears. Christmas tears.

I don’t know why it is. God knows I have tried.

The first year I bought her a vacuum cleaner. The next year, an electric frying pan. Then a clock radio.

When I gave her the electric blanket, she stopped crying long enough to explain that nothing which plugs in is romantic.

I tried buying clothes. Very iffy endeavor. If they are too large, she is insulted. If they are too small, she is hurt.

One year I bought pleats. She said she never wears pleats. I said I never noticed, and she cried.

Next year, I brought home pleats again. It didn’t help to tell her that my secretary picked them out.

And then there was the year I decided to be practical. We had a house full of little ones and no savings. I wanted to give her a sense of security, so I bought her some airline stock. To build up the excitement and suspense, I went out to the airport and got one of those folders they give you. I wrapped it in a small box and put that in a larger box.

When she finally got it open and saw the folder, she jumped in my lap and said, “Where are we going?”

Needless to say, the stock certificate was a disappointment. Adding insult to injury, Eastern Airlines went broke in a couple of months.

One year I decided that the best gift I could give my family was to quit smoking. I snuffed out a cigarette five days before Christmas and quit cold turkey. Then, to make it more concrete, I spent the next 120 hours composing a detailed diary, which I printed out and bound up in a booklet, entitled “Five Days to Christmas.”

I was sure that my dear ones would treasure that story and celebrate my new found freedom from the ravages of nicotine.

Not so. The booklet sat on the coffee table until well after New Years, when I filed it away in my desk.

When kids are little, tears often come at the end of a long day of excitement. New toys seem to break easily. And young ones don’t accommodate sharing very well on Christmas Day.

There are tears of joy, and tears of relief. And tears of exhaustion.

And tears that come when, at two o’clock on Christmas morning, the damned toy that just won’t work they way it does on television finally succumbs to Brennan’s Law.

Brennan’s Law? Very simple.

You can’t fix it unless you take it apart. It won’t come apart unless you force it. If your force it, it will break. Therefore, you can’t fix it unless you break it.

Never fails.

Of course, there are tears of joy on Christmas, too.

I managed to evoke some of those a few years ago when I gave my dear wife the keys to a cottage in the North that she had been wanting for a long time, but never really expecting to have.

But real Christmas tears are poignant, bittersweet.

They well up and salt your glass of wine when your daughter and her family have all gone to bed and you’re sitting alone in front of a multi colored tree remembering the hectic days, the exciting days, the days full of hugs and laughter, wrapping paper and card board boxes. The long nights of anticipation, the cold parking lots and midnight Masses, the long rides home.

Any Christmas could have been our last.

We never thought about it. We were too alive. Too full of the moment. Too busy doing Christmas.

We think about it now. Every kiss and every hug. Every thank you and every goodbye. Every moment of this magical season pinches the corner of your eye and calls out a little wet reminder that it will all be over.

Not this year, surely. Maybe not next year or the year after that.

But sooner. Always sooner.

We’ll squeeze it for all it can give. Christmas is, after all the story of the Baby’s birth. It is all about beginning, starting new. Starting over.

And not being alone. Not ever being alone again.

MECCA ANYONE?

2010-12-15T12:03:00.001-08:00

The federally funded Smithsonian Institute, one of America’s premier art museums, recently featured a video showing a crucified Jesus Christ covered with a swarm of ants.

The insult to Christians was palpable. So much so that Congressional pressure was brought to bear and the exhibit was cancelled.

By contrast, here’s what is going on in the Justice Department:

Assistant Attorney General for Civil Rights Thomas E. Perez has directed the Civil Rights Division’s National Origin Working Group to work proactively to combat violations of civil rights laws against Arab, Muslim, Sikh, and South-Asian Americans, and those perceived to be members of these groups, through the creation of the Initiative to Combat Post 9/11 Discriminatory Backlash.

Here’s what “working proactively” apparently means:

Berkeley school district 87, in the state of Illinois, is accused of violating the civil rights of Safoorah Khan, a teacher at McArthur Middle School, by failing to reasonably accommodate her religious practices.

A complaint filed by the United States Department of Justice in a federal court in Chicago alleges that Ms Khan's bosses forced her to "choose between her job and her religious beliefs."

She wrote to the school's superintendent asking for a 20-day unpaid leave of absence in December 2008, to travel to Saudi Arabia for the hajj, the pilgrimage all Muslims are supposed to make once during their lifetime.

The request was denied, however, because the "purpose of her leave was not related to her professional duties" and was not specifically included in an agreement with the teachers' union.

After appealing and being rejected for a second time, Ms Khan wrote to the school board that "based on her religious beliefs, she could not justify delaying performing Hajj."

The teacher, who had joined the school in 2007, resigned shortly after. Now the Government is seeking to have her reinstated with back pay and promotions, and for the school board to pay her compensation.

That’s right. The Government is seeking to have her reinstated. The federal government. The government of the United States. Attorneys employed by and paid by the federal government are taking her case. For free.

Not the ACLU, the American Civil Liberties Union. Not the CAIR, the Council on American-Islamic Relations.

No, the lady is represented by our federal government. Paid for by our tax dollars. The same tax dollars that support the Smithsonian Institute which thinks that insulting Christians is an art form.

Ms. Kahn was hired as a teacher in 2007. She wanted to make her once-in-a-lifetime pilgrimage to Mecca in 2008. Makes you wonder how much she was able to save in 10 months. And what she plans to do when she retires.

The 22 story Marriott World Trade Center Hotel, situated between the twin towers, was obliterated on 9-11. Nobody knows how many people were inside. The New York Times estimated that at least 50 people died there.

About two hours after that holocaust, the Marriott Hotel in Des Moines withdrew its offer to host a convention of the Midwest Federation of American Syrian-Lebanese Clubs.

The Federation charged the hotel with discrimination and the Department of Justice extracted an apology, money damages, and a commitment to sensitivity training from Marriott.

Despite its federally imposed sensitivity, the Marriott in Oak Brook, Illinois refused to host a 2009 conference of Hizb ut-Tahrir America, an organization of fundamentalist Muslims which urges the killing of those who leave the Islamic faith.

Those folks ended up at the Hilton, where their meeting was protested by R.E.A.L., (Responsible for Equality and Liberty) an organization which urges Americans to love all of our brothers and sisters, regardless of religious belief.

Apparently, the Civil Rights Act which outlaws discrimination in public accommodations on account of race, color, creed or national origin doesn’t cover discrimination based on advocating murder, even when the killing is claimed to be a tenet of religious belief.

Interesting. What if the belief requires bodily injury less than killing? Cutting off the hand of a thief, for example? Or the clitoris of a baby girl? Or the foreskin of a baby boy?

Or what if one’s religious belief includes a prohibition against marrying outside the faith or inter marriage with other races? Or what if it condones polygamy? Could the Marriott turn away a Sheik who wants to bunk in with his harem?

Unhappily, our federal Nanny has entered the thicket of theology.

I wonder how long it will be before we reach the ultimate goal of statism where everything that is not prohibited is mandated.

There are, I submit, certain consolations associated with being 81 years of age.

DON'T THANK GOD?

2010-12-02T20:09:00.000-08:00

In May of 2001, Ryan Brown, scheduled to speak at commencement exercises at Washington Community High School in Washington, Illinois, went to the microphone and spouted a loud “Ah Choo.”

Whereupon a group of his pals shouted “God Bless You,” thereby defying the ‘no praying’ order of a federal judge.

And so the culture wars continue.

Now comes Ronnie Hastie, a star running back for Tumwater High School in Washington State.

After a 25 yard touchdown run in the T-Birds 63-27 win over East Valley in the Division 2A semi final game, Hastie dropped to one knee and pointed to the sky. He was immediately, and literally, hit with a yellow flag, and his team was penalized fifteen yards for “celebrating.”

The National Federation of State High School Associations sent a "point of emphasis" memo to athletic directors across the country before the 2009 season reminding them of the need for good sportsmanship in games.

It called specific attention to federation rule 9-5-1, which reads, in part: "No player shall act in an unsportsmanlike manner once the officials assume authority for the contest."

Examples of inappropriate behavior, it said, included but were not limited to, "Baiting or taunting acts or words or insignia worn which engender ill will; Using profanity, insulting or vulgar language or gestures; or Any delayed, excessive or prolonged act by which a player attempts to focus attention upon himself."

College and high school athletic associations have cracked down on post touchdown celebrating in the wake of practices among NFL professionals which the powers that be have decreed to be excessive.

Many fans disagree. Some say that NFL is beginning to mean “No Fun League.”

Celebrating touchdowns, in fact, has become an art form in the NFL.

You can Google it and see the latest and the greatest by such outstanding celebratory performers as Terrell Owens, Randy Moss, Chad Johnson and Joe Horn.

Admittedly, some of it is tasteless, if not downright vulgar.

But most people are not offended to see athletes rejoicing over their success. In fact emotional demonstration is very much part of the thrill of victory and the agony of defeat. It’s part of the drama of sports.

I suppose nobody can quarrel with the effort of high school coaches and athletic associations to instill attitudes and behavior reflecting good sportsmanship in student athletes. After all, participation in team sports is part of the overall educational process.

But I have to say that I am troubled over the call on Ronnie Hastie.

From his perspective, it was a big surprise. He had executed the same prayerful posture every time he got into the end zone all season. The semi final game was the first time it had resulted in a yellow flag.

So the call is subjective. Some refs tolerate it, some don’t.

What gets my stomach in a knot is the idea that thanking God for athletic accomplishment can be viewed by anybody as an act of poor sportsmanship.

One of the suits back in the association office, trying to justify the call, told reporters that the reason for the rule and the call was to prevent delay of the game. He said that upon reaching the end zone, a player is obliged to immediately turn the ball over to the referee.

I saw Hastie’s genuflection on the video. It didn’t take more than a second. If fact, if the ref had reached for the ball instead of his flag, he would have had it in hand before the penalty marker hit the ground.

Unfortunately, the incident smacks of something much more ominous than cracking down on poor sportsmanship.

How much of the impetus to penalize Ronnie Hastie and others like him comes from the same culture war that shuts down prayer at high school commencements and the singing of Christmas carols in public schools?

Where will the ACLU stand if a team is penalized because a player makes the sign of the cross on the field?

It does make you wonder if the fellow refereeing the Tumwater game would have thrown the flag at a wide receiver named Muhammad something or other who prostrates himself toward Mecca in the end zone.

For let’s say, ninety seconds.

Delay of game?

Not hardly in this day and age.

TURKEY DAY

2010-11-25T17:20:00.000-08:00

They came from Chicago.

Well, actually, they came from Glen View.

And from Grand Rapids, and East Lansing, and Okemos, and Ann Arbor.

They came from North Carolina, and New York, and Wisconsin. And from far off California.

They came hungry. And thirsty.

They came with laughter, and love and lasagna.

Their eyes were wide with delight and memories. "When did you get the braces off?” “How did you grow so tall?” “Old enough to have a beer? I can’t believe it!”

At dawn, I tiptoed through a house full of bodies. Every bed, every couch. Every nook and cranny that could accommodate a sleeping bag. Bodies everywhere.

The big day has begun.

Some went to Mass. Some ran the charity 5K down in town. Jimmy won by a mile. We knew he would.

A knock on the bathroom door.

“Hey Dad, where’s the plunger. Don’t tell Mom.”

A half dozen grade schoolers in the basement are making memories for future Thanksgiving days. Imaginations running wild, Singing, screaming, making up stories, being silly.

Takes me back to 1938 and my grandmother’s little house in Detroit.

How the wheel turns. How life revolves.

So many memories rush back. I can’t remember what I had for lunch, but I can close my eyes and smell the turkey cooking at Uncle Emmett Sullivan’s house half a century ago.

Our driveway is crammed with cars. Soon there will be thirty-one of us around a big table, celebrating the day, celebrating each other, giving thanks to an almighty Creator we all hold dear in our hearts.

And I look at that beautiful lady next to me and I ask myself, “What on earth have we done?”

Two frightened twenty-one year old college students with a 1949 Mercury and a part time job, embarking on a lifetime adventure nearly sixty years ago. Is this what we wanted ? Is this what we expected?

We never had the chutzpah to predict it. Not even that New Years Eve when the furnace went out and we sat by the fireplace and tried to look down the road.

It just happened, and keeps on happening. You gotta roll with the punches and you gotta believe.

And what ever else we have done, we surely have believed.

We have believed that a loving Creator has decreed that if we lived by His laws and the laws of His nature, we would experience the best that life has to offer.

Or as the Catholic marriage ceremony used to say, “the fullest measure of happiness allotted to man in this veil of tears.”

And so it has been.

We thank God today. Again today. As we must thank Him every day.

May your hugs be as warm and welcome. May your day be as full of cheer.

And may tomorrow’s cold turkey sandwich be all that you anticipate.

FEAR MONGERS

2010-11-23T18:21:00.001-08:00

Surfing the Internet the other day, I happened upon a blog called “the Liberty Papers” which was celebrating its fifth anniversary.

To mark the occasion, they reprinted some of their “best” essays. One of them offered the shrill and tired arguments against an Article V Convention which have been repeated and repeated by the John Birch Society and others who don’t trust the American people.

Their keynote is always the letter that Chief Justice Warren Burger wrote to Phyllis Schlafly. He said:

I have also repeatedly given my opinion that there is no effective way to limit or muzzle the actions of a Constitutional Convention. The convention could make its own rules and set its own agenda. Congress might try to limit the convention to one amendment or to one issue, but there is no way to assure that the convention would obey. After a convention is convened, it will be too late to stop the convention if we don’t like its agenda. The meeting in 1787 ignored the limit placed by the confederation Congress “for the sole and express purpose.”

Sometimes a half truth is more deceiving than an outright lie.

Burger was quite right in saying that a convention makes its own rules and cannot be muzzled.

But when he says that a convention cannot be ‘stopped,’ he is talking nonsense.

The convention can amend the constitution? Are you kidding? There is no way the convention could do that.

The constitution only gets amended when three quarters of the states ratify an amendment. That’s thirty-eight states.

And the states can only ratify amendments that come from the United States Congress.

An Article V convention can’t send amendments out to the states. It has to send its proposals to the Congress. Then the Congress decides whether an amendment should be ratified by state legislatures or by conventions in each state.

Unless the Congress agrees on the method of ratification and sends the amendment to the states, nothing - absolutely nothing - can happen.

So it’s like everything else in politics. If an amendment is popular enough, the voters will insist that the Congress send it out to the states to be ratified. If an amendment is unpopular, or even sufficiently controversial, the Congress will sit on it, and nothing will happen.

But if the “too late to stop” argument is a phoney, the claim that the 1787 convention was a run away meeting that ignored limits placed on it by the confederation Congress, is downright preposterous.

Let’s look at the record.

From September 11 through September 14, 1786, twelve delegates from five states met in Annapolis, Maryland. It was called a “Meeting of Commissioners to Remedy Defects of the Federal Government.”

The Commissioners accomplished only one thing. They decided to ask all thirteen states to send delegates to Philadelphia the following May.

They got a good response. By February of 1787, the confederation Congress had before it several resolutions calling for a convention in Philadelphia.

Here is what they adopted:

Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government & the preservation of the Union.

Chief Justice Burger cites the phrase “for the sole and express purpose’ without mentioning what the purpose was. A half truth. Cheesy lawyer trick.

What the Congress really said was “for the sole and express purpose of REVISING the articles of confederation.”

Webster’s dictionary tells us that REVISING means remodeling, revamping, remaking, doing over.

Revising is not the same as amending. Revising means creating a whole new constitution. A revised constitution. A different constitution,

The original Articles of Confederation contained a provision that they could not be amended without the unanimous agreement of all thirteen states. A daunting requirement. And a good reason to go to Philadelphia.

True, the 1787 document required only nine states to ratify. But it also said that only those states which ratified it would be bound by it. By 1790, all thirteen states were on board, so the question of whether the United States of America was born in 1781 or 1789 is moot.

In any case, the Burger legacy is mischiefious.

The super patriots who love our constitution and regard it as divinely inspired seem willing to worship everything but Article V.

Those on the far left oppose a convention because they fear crackpot conservatives.

Those on the hard right oppose it because they fear hair brained liberals.

They’re all afraid of We The People.

Burger was educated in a working man’s law school in Saint Paul, Minnesota.

Somehow, he outlived his populist roots.

It can happen if you spend a lot of time in Washington, D.C.

NURSES ON STRIKE

2010-11-19T07:48:00.001-08:00

On November 14, 2002, about half of the nurses at Northern Michigan Hospital in Petoskey, Michigan walked out on strike.

They were represented by the International Brotherhood of Teamsters.

A teamster, you may know, is a fellow who drives a team of horses. Teamsters were the forerunners of truck drivers. The folks who brought the food to market and moved all sorts of other things around.

Jimmy Hoffa was the hero of the Teamsters union. A legendary fighter for the working man, tough, ruthless, ambitious. He cozied up with the mob. Did time in jail. Then one day he had lunch at Machus Red Fox in Oakland County and disappeared.

Hoffa’s son, Jim Jr. is a lawyer. He became President of the Teamsters in 1998.

That was about the time the International Brotherhood of Teamsters began to expand. After all they really weren’t driving teams of horses anyway, so why limit the membership to truck drivers?

Unhappily, they brought a confrontational representation strategy to the table. It didn’t look good on the descendants of Florence Nightengale.

Northern Michigan Hospital hired replacements for the striking nurses. About half of those who had gone on strike left the union and went back to work.

But a die-hard core of protesters hung on. Their picket lines in front of the hospital became a tradition in the little northern town. By 2004 they were featuring the claim that theirs was the longest nurse’s strike in history.

By 2006, the hospital was declaring that the strike was over. The union had given up its efforts to retain certification as the official bargaining agent for the nurses.

I have been a patient at Northern Michigan Hospital. It’s a wonderful place, full of caring, dedicated people. Just what a hospital is supposed to be.

I see in the paper that a strike has just been averted at Sparrow Hospital in Lansing. Good news.

Our daughter-in-law, Catherine, is a supervisory nurse there. She was frantic about the possibility of a strike which would have required her to cross picket lines manned by her friends and coworkers.

Got me to thinking.

The idea of a strike is to generate public support for the labor side of the bargaining table. That’s why they carry signs and walk up and down the sidewalk.

Going on strike means forfeiting wages. It also means depriving the employer, and more critically, the employer’s clients or customers of their services.

That’s the part I find very hard to understand.

Nurses are supposed to care about their patients. The vast majority of them do. They really, really care. That’s why they became nurses. That’s why they empty bedpans. Cheerfully.

A nurse’s strike sounds like an oxymoron. Nurses nurse. That’s what they do. How can a nurse who doesn’t nurse be a nurse?

But nurses are also employees. They are working folks who do what they do, not only because they love what they do, not only because they are dedicated to taking care of sick people, but also as a way to earn a living and to provide for themselves and their families.

So what are they to do when they are at odds with their employers over the conditions and terms of their employment?

That’s particularly sticky since for the most part their employers are non profit, charitable corporations, governed by unpaid Boards of Directors, and supported by public generosity or the local taxpayers.

So a nurses strike is a war between the good guys and the good guys.

What are we patients and potential patients and patient’s families supposed to think?

It strikes me that there must be a better way. A tertium quid as we lawyers might say. A third thing. Something outside of the box.

How about this?

Instead of punishing the patients by withholding their services, why don’t the nurses donate their earnings back to the hospital?

Instead of walking up and down the sidewalk in the dead of winter carrying homemade signs, why not invite the media into the hospital cafeteria to film the nurses tearing up their paychecks?

A little hard for the hospital administrators to plead poverty in the face of nurses foregoing their compensation.

I’m just one guy, but if I read in the paper or saw on the nightly news that nurses were tearing up their paychecks to protest their working conditions, I would be tempted to dig pretty deep and throw something into the pot myself.

Bizarre? Maybe.

But I’ll wager it would have been more effective than the Teamsters inspired confrontational strategy that ruined so many lives and careers in Petoskey.

WHAT'S THE USE?

2010-11-10T20:35:00.000-08:00

Alexis de Tocqueville was one smart Frenchman.

He was sent to the United States in 1831 at the age of 25 to study our prison system. He ended up writing a two volume classic entitled “Democracy in America,” which is – or was – required reading for all political science majors.

At the risk of losing you, I want to quote from his chapter entitled “Despotism in Democratic Nations.”

Stay with me. This is good stuff. He warned that we might become

an innumerable multitude of men, all equal and alike, incessantly endeavoring to procure the petty and paltry pleasures with which they glut their lives. Each of them, living apart, is as a stranger to the fate of all the rest; his children and his private friends constitute to him the whole of mankind. As for the rest of his fellow citizens, he is close to them, but he does not see them; he touches them, but he does not feel them; he exists only in himself and for himself alone; and if his kindred still remain to him, he may be said at any rate to have lost his country.

Above this race of men stands an immense and tutelary power, which takes upon itself alone to secure their gratifications and to watch over their fate. That power is absolute, minute, regular, provi-dent, and mild. It would be like the authority of a parent if, like that authority, its object was to prepare men for manhood; but it seeks, on the contrary, to keep them in perpetual childhood: it is well content that the people should rejoice, provided they think of nothing but rejoicing. For their happiness such a government will¬ingly labors, but it chooses to be the sole agent and the only arbiter of that happiness; it provides for their security, foresees and sup¬plies their necessities, facilitates their pleasures, manages their prin¬cipal concerns, directs their industry, regulates the descent of prop¬erty, and subdivides their inheritances: what remains, but to spare them all the care of thinking and all the trouble of living?

In short, the Frenchman predicted that America might morph into a nation of myopic, self centered pleasure seekers, governed by a nanny state that controls our lives from the cradle to the grave.

That’s the danger when people think they can vote themselves rich, healthy, happy and secure.

H. L. Mencken, the cynical sage of Baltimore, pointedly observed that no one ever went broke underestimating the intelligence of the American people.

That dark sentiment surfaced this afternoon in an email from a very good friend. He was responding to my last blog touting Convention USA. Here’s what he said:

GUILTY AS CHARGED! I can’t tell you how many times I came within a micrometer of sending in my subscription to the cause only to fall victim to my ongoing and ever increasing malaise of hopelessness. I must admit it is my own weakness and I have to deal with it but I cannot make myself believe anyone or any group will ever be able to get the people of this nation to agree to real change for the better. There are too many vested interests to fight against, too many who just don’t give a damn and just too many really ignorant folks out there. I again must tell you how much I enjoy your blogs, how much I agree with your point of view and insights and how much respect I have for you as a highly intelligent, clear thinking and dedicated patriot. I just don’t hold the majority of folks in this nation in a similar regard

It’s hard to be critical of a guy who says such nice things about you.

But the fact is that the shoulder shrugging “What’s the use?” attitude so prevalent among good folks, well meaning folks, common sense folks in every corner of our land constitutes a mountain of inertia that protects and perpetuates all the things these same folks complain about at the barber shop and the hairdresser.

I have always believed that the generality of mankind can recognize truth, and that in the long haul, the truth is what sets us free.

I believe in democracy because I trust the intuitive wisdom of the great unwashed.

Does every jury of average citizens always come up with the right verdict? Of course not.

But in the lives of human beings and of nations, decision making is not an exact science.

I have a good friend who subjects his choices to the “smell test.” We all do something like that.

The American people are essentially conservative. Not in the political sense, but they are conservative in that they have a strong bias in favor of the status quo. They prefer the devil they know to the devil they don’t know.

The ideologs and the crazies will always gravitate toward a convention for proposing amendments to the constitution. They will bring brief cases full of ideas. Radical ideas. Unworkable ideas. Just plain goofy ideas. And a few damn good ones.

It will take some patience to hear them out. It will take discernment to recognize the solid, the practical, the acceptable proposals, and it will take courage and determination to see them through to public consensus.

But that is what self government is all about.

The mid term elections are over. The party is over. It’s time to go to work.