Sunday, December 13, 2009


I just finished reading "The End of Barbary Terror" by Frederick C. Leiner. A useful perspective.

For over two hundred years, from the 16th to the 18th centuries, the African nations of Morrocco, Tunis, Tripoli and Algiers, the so-called Barbary coast, ruled the Mediterranean. In the 250 years after the Moors were driven from Spain over 1,000,000white Christians were captured and enslaved by those Islamic states.

It became the custom of European nations to pay tribute to the Barbary potentates in order to insure safe passage of their merchant ships.

The United States began following the European tradition in the late 1700's at one time paying nearly one-seventh of the national revenue to the "Turks" as they were called.

In 1812 an American merchant ship, the "Edwin" was captured by the Algerines and her captain and crew delivered into slavery.

The U.S. at that time was busy fighting with Britain. What little navy we had was bottled up in harbors along there East coast by a British blockade.

But in 1815, after the treaty of Ghent, the House of Representatives voted 94-32 to declare war on Algiers and the Senate concurred by a vote of 27-2. President Madison sent Commodore Stephen Decatur with a squadron of ships to the Mediterranean. The aim of the war was simple: break the system of state sponsored maritime terrorism and end the Islamic North African practice of enslaving Americans or forcing the United States to pay tribute.

Decatur was eminently successful. By the 4th of July, 1815, he had captured two Algerine ships, killed their admiral and negotiated a treaty with the dey of Algiers in which the dey agreed to deliver up all American slaves and desist from piracy and stop demanding tribute of any kind.

All of which embarrassed the hell out of the British, who were still paying tribute despite having the most powerful navy in the world. As a result of U.S. leadership, the Brits finally laid siege to Algiers and the Barbary pirates were put out of business.

I pondered all these things in the light of an ongoing family discussion about Afganistan. President Obama has gotten high marks on his Nobel prize speech, and his defense of the concept of just warfare. By trying to focus on destroying Al Qaeda, he has connected the Afgan war to the 9/11 attack. My grandson, Tom III, said it best: he was ready to enlist on 9/12/01.

But the problem is that 9/11 was not an act of war in any classic or traditional sense. Whether it was inspired by fanatic religious jihad or some other motive, the attack was not the act of a nation against which a traditional war can be declared and waged. And the conundrum faced by our nation is how to respond if it happens again.

When crimes are committed in the United States by foreign nationals, we demand that they be arrested and extradited to face trial and punishment in our courts. If the criminals are not surrendered to us, or are deliberately given asylum in another country, we should take that refusal as a hostile act. Then our dispute is not with some amorphous gang of criminals, but with the nation which harbors them.

That would be the scenario for a just war.

Sunday, December 6, 2009


They say that two things you should never watch being made are sausages and legislation.

Both are amalgamations of diverse unappetizing ingredients, made palatable only by integration into a single unidentifiable mass.

The currently debated health care bills are surely sausage in the making. Two thousand pages of arcane federal statutory language are sufficient to hide enough scraps of rotting pork and associated garbage to gag an army.

The result of this omnibus approach to health care, of course, is to invite scatter gun arguments for and against, with proponents and opponents pointing to unrelated sections, conflicting provisions, and opposing interpretations.

Apparently the conventional Congressional wisdom advises that bills need to be broad enough to induce support from a majority of each house by creating coalitions of legislators who have different axes to grind.

By this method, regulations which themselves have literally no public or legislative support can become the law of the land simply because they have been bundled up with a mass of unrelated rules, each of which claims a bare majority of supporters.

Article IV, Section 24 of the Michigan Constitution provides:

“No law shall embrace more than one object, which shall be expressed in its title.”

No doubt there are similar provisions in most State constitutions.

Perhaps it is time to amend the federal Constitution in a similar vein. How about this for the 28th Amendment:

No Bill in either House of the Congress shall embrace more than one object which shall be expressed in its title, nor shall any bill consist of more than one thousand words in the English language.

Friday, November 20, 2009


The KISS principle needs to be revived and observed in the nation’s capitol.

K.I.S.S. stands for Keep It Simple, Stupid.

A 1,900 page Health Care Bill is rather obviously a violation of KISS, so I would like to offer an idea that is simple, understandable, workable and founded on proven principles of free enterprise.

I call it “Medi Fex,” because it mimics Fannie Mae and Freddie Mac. Not that those two entities have acquitted themselves which much honor of late, but at least the concept of a federally chartered quasi public corporation is nothing new.

Here it is:

There is hereby created a Federal Corporation to be known as the Medical Fee Exchange Corporation which shall be authorized to purchase from health care providers such accounts receivable for medical services rendered as shall not be declared ineligible under State law.

The Medical Fee Exchange Corporation shall be governed by a Board of Directors consisting of fifteen persons appointed by the President and confirmed by the Senate, no less than seven of whom shall be licensed health care providers.

I suppose it’s a little sanguine to hope that Congress might be able to whittle 1,900pages down to two paragraphs, but I submit that those 80 words contain the substance of a health care program which leaves no one out and does what just about what everybody wants to get done.

First, if you have insurance, fine. Medi Fex leaves you right where you are.

Second, if you don’t have insurance, Medi Fex assures that you won’t be turned away by a doctor or hospital because you don’t have insurance or the money to pay in advance. You get the service and the doctor or hospital sends you a bill. If you don’t pay or can’t pay the bill, you will end up having to deal with Medi Fex. If Medi Fex doesn’t think you can afford to pay the bill, they can write it off.

Under Medi Fex, the question of what health care is or is not affordable, is decided on a case by case basis.

Under Medi Fex, the sticky question of abortion is right back where it belongs and where it was before the Supreme Court decided Roe v Wade: in the State Legislatures.

Is it too much to hope that the Republicans in the Senate might take a moment from their busy schedules to read 80 words, and think about it?

Is it too much to hope that the Democrats in the Senate might listen to an idea that didn’t originate inside the beltway?

Sunday, November 1, 2009


September 22, 2009

The last time I spoke to the Berrien County Bar Association was May 1, 1967. That was 42 years ago. I don’t suppose many of you were there that night.

Scott Dienes tells me he was still en ventra sa mere at the time.

The title of my talk was “A Lasting Civilization Through Law.” I seem to recall that the Harold Palladium published the full text.

I dug that old speech out and read it over. I don’t think I could say anything more pertinent today than what I said 42 years ago.

The nineteen sixties were turbulent times. Lyndon Johnson was President. There were 360 thousand American soldiers in Viet Nam; young people were becoming hippies, burning their draft cards, moving to Canada.

In San Francisco, they called it the summer of love. In Detroit it was the summer of hell. Thousands of buildings were burned, more thousands of people were arrested, 43 citizens were killed. Federal troops had to be summoned to quell the riot. You had a riot right here in Benton Harbor the year before.

White people fled the cities. When I was elected Common Pleas Court Judge in Detroit in 1961, it was the fourth largest city in America with nearly two million residents. Today there are less than 900 thousand.

In 1960, Benton Harbor had a population of about 19,000; 14,000 white and 5,000 black.

Today, the city has something like 10,000 residents, only about 500 of whom are white.

In 1967 there were no personal computers, no cell phones, no satellites.

In 1967 they were just clearing the land to start building the World Trade Center.

There’ve been a lot of changes in America.

I started my 1967 speech by talking about presidential campaign slogans. Lyndon Johnson’s “Great Society”, John Kennedy’s “New Frontier”, Roosevelt’s “New Deal” and Truman’s “Fair Deal.”

Last year we heard a new slogan: “Change we can Believe In.”

Barrack Obama was elected in 2008 because he represented change. He promised America a new era; it was to be post racial; post political. Our troops in Iraq would come home. The divisions and the stalemates, the petty politics of the past, were to be set aside. It was to be a time of hope.

Thousands of people chanting “Yes, we can” believed they were welcoming a new dawn of empowerment, a new day of accountable, transparent government.

For those of us who remember the 1960’s and the booming voice of Martin Luther King chanting his litany of aspirations for his people, the election of a president of African descent in 2008 reverberated with the echoing phrase. “I have a dream.”

But dreams have a way of dissipating with the dawn and the yawn of a new day. President Obama is still popular, still charismatic, and his election is still of historic significance.

But the American people are still hoping and still crying out for change; change to believe in; change that really makes a difference in what goes on in Washington DC; change that renews their confidence and pride in our nation.

The silent majority is speaking up all across the country. From home grown tea parties in city after city, to town hall forums, to a massive protest march on the nation’s capital.

We are a war weary, bankrupt nation, overrun with illegal immigration, drowning in consumer credit default. Our neighborhoods are haunted by empty houses and mortgage foreclosures, our Congressmen refuse to read the legislation they want us to accept on faith, our prisons are full, too many of our people are unemployed; too many are disillusioned, too many are disgusted and discouraged.

And too many expect the federal government to subsidize the economy, bolster the banks, bail out the automakers, and pay all the doctor bills.

There’s an article by columnist Charley Reese circulating on the Internet which talks about the 545 people in Washington D.C. who are responsible for all our troubles.

545 people. 435 Representatives in Congress, 100 Senators, 9 Supreme Court Justices and one President.

545 people who have either caused all of our problems or have failed to fix all the problems that have been caused by somebody else.

The gist of Charley’s tirade is that if we throw all the rascals out, we could fix everything that is wrong in America.

I don’t see it that way.

I don’t think just changing the players would accomplish anything. Saturday Night Live mocked George W. Bush for eight years. They have already started to ridicule Barack Obama.

In December of 1955, I was a Republican candidate for the United States Congress. I was defeated by a young man who was elected to succeed his father in the 15th District of Michigan.

That young man’s name was John Dingell. Today, 54 years later, he is the longest serving Congressman in the history of the United States of America.

John and I have been friends for more than half a century. He’s a nice fellow and a loyal American.

He’s also a smart politician who thinks he ought to be entitled to help run our country as long as he lives.

I don’t think so.

But I also don’t think electing new people to play the same old game is the answer. We have to change the rules of the game.

Article V of the United States Constitution provides two ways to amend the Supreme Law of the Land.

Congress can propose amendments by a two thirds vote in both houses. That has been done twenty five times.

The second way has never been used. Article V provides that if two thirds of the States request it, the Congress shall call a convention for proposing amendments.

Over the 220 years of our history, there have been 750 petitions for a convention filed in the Congress. Every state in the union has petitioned more than once.

Congress has ignored them. Congress has not even counted them.

Some people argue that petitions for a convention must all spell out the same issue. Article V doesn’t require that. The states may all want a convention for different reasons. The only thing that matters is that two thirds of the states want a convention.

I wrote a law review article in 1982 called “Return to Philadelphia.” I tried to make a case for calling an Article V convention. I didn’t exactly create a stir in the academic community.

The Federalist Society invited me to Yale University to a seminar and I gave a speech entitled “The Last Prerogative.” Still no enthusiasm.

But I am nothing if not persistent.

A couple of years ago I found some people who agree with me. A man named Bill Walker had taken a case all the way to the US Supreme Court insisting that the Congress was in violation of the constitution for not calling a convention.

Bill is a very bright fellow, but he is not a lawyer. He couldn’t find a lawyer who was willing to take his case, so he proceeded in pro per.

Of course he lost.

But Bill and I and a few others formed an organization called Friends of the Article V Convention. We pronounce the acronym FOAVC as “foe vic.”

FOAVC is non partisan. We aren’t advocating any particular amendment. We just think it’s time for the people of the United States to fix our government.

An article V convention is not a constitutional convention such as we had here in Michigan in 1963.

It would have no authority to scrap the Philadelphia charter and start all over again.

An article V convention can only propose amendments; specific changes dealing with only one subject which must be ratified by three quarters of the states.

The idea of an Article V convention has been ridiculed by both the left and the right wings of our political spectrum. You hear the cry ‘run away convention’ from those folks.

They gasp with horror at the thought that anyone would tamper with the sacred screed written by James Madison, Thomas Jefferson, Alexander Hamilton, George Washington and Benjamin Franklin.

That’s not the way the founding fathers saw it.

Here’s what Thomas Jefferson had to say in 1816:

“Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book reading; and this they would say themselves, were they to rise from the dead.”

I have a long history of tilting at windmills and dreaming the impossible dream. People thought I was crazy to try to start a law school with fifty dollars.

But I really do believe that America needs an Article V convention, and I’m eighty year old so I can believe whatever I want to believe.

What kinds of amendments would a convention propose?

How about congressional term limits?
And limiting presidential war powers?
And requiring a balanced budget?
And limiting the federal debt?

The list goes on. Popular election of the President. A system of presidential primaries. Non partisan nominations to the Supreme Court, and age or term limits for the justices.

A group of professors at Yale University recently published a book entitled “The Constitution in 2020.”

They see all kinds of change in our constitution in the next eleven years, but oddly no amendments.

Like many constitutional scholars, they agree with Charles Evans Hughes who opined, “The Constitution is what the Supreme Court says it is.” And Felix Frankfurter, who told law students, “The Supreme Court is the Constitution.”

I prefer the view of Thomas M. Cooley who said, “A constitution is not to be made to mean one thing at one time and another at some subsequent time when the circumstances may have so changed as perhaps to make a different rule in the case seem desirable.”

He felt that judges who do that are guilty of “reckless disregard of official oath and public duty.”

Pragmatists argue that the constitution is too hard to amend; that approval by three quarters of the states is too difficult, and so they prefer to make the basic charter of our government and our freedoms subject to amendment by five votes on the high court.

Article VI of the constitution requires every public official to take an oath to support “this constitution.”

It’s not an oath to obey the United States Supreme Court.

No reasonable reading of the American Constitution will yield any conclusion other than that it was intended to be a written law, adopted by the supreme authority of the people of the United States and expected to remain effective and in force, according to the plain, original meaning of its words, unless and until it would be amended pursuant to Article V.

Alexander Hamilton said it this way:

“Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it, prior to such an act.”

My successor at Cooley, President Don Leduc, has given me the green light to organize a seminar on Article V as Cooley’s observance of Constitution day in 2010.

I’m looking forward to it.

I want to see us bring together constitutional scholars, legislators, and patriots from all over America to talk seriously about an Article V convention; what it can do; how it would work; why it must be done if our Republic is to be renewed and revitalized.

The seminar is but a small beginning. Because Congress must call the convention, and because Congress fears the convention, Congress will drag its feet and try to find every conceivable excuse to refuse to act.

Only an aroused citizenry can make it happen. I invite the lawyers of Berrien County to think about it, to talk about it. I invite you to visit the FOAVC website at

I thank you for the opportunity to share with you my thoughts and my dreams for this great nation.

And America is a great nation, the greatest on earth, the greatest in all of human history. But as I said 42 years ago, a lasting civilization can only be achieved through wise and effective laws, understood and supported by the people.

Eternal vigilance is the price of freedom and protecting the rule of law is a full time job.

And that, ladies and Gentlemen, is what you and I will be doing for the rest of our lives.

Wednesday, October 7, 2009


I was sixteen years old when an atomic bomb was dropped on Hiroshima. I remember reading the newspaper accounts with mixed feelings of awe and relief.

My brother Terry was in the navy and was about to ship out from San Francisco to the Pacific Theater of War. The news of Hiroshima was accompanied by speculation that the war would soon be over. Terry would be safe. Terry would come home.

As the months and years went by, the horror of Hiroshima became more familiar. The nuclear age emerged in everyone’s mind and imagination.

As the forties faded into the fifties, the Soviet Union perfected its version of the atom bomb, and the race was on. On both sides of the globe bigger and bigger explosions celebrated the destructive power of the atom as East and West competed in developing nuclear weapons.

John Kennedy bragged that America had enough bombs to wipe out the Soviet Union twice, while the Soviets had only half as many. Nikita Kruschev replied that killing us once would be enough.

It was the era some called the balance of terror. If you nuke us, we’ll nuke you. The threat of retaliation was our only security. The very existence of the human race on planet earth seemed to hang in the balance of an international game of chicken.

I remember many days, when driving back to Detroit from Lansing, feeling the icy grip of fear clutch at my heart as I would see in my mind’s eye an ominous mushroom cloud rising up on the horizon in front of me, signaling that the great city of Detroit and everyone I loved in the world had just been obliterated.

People lived in fear in those days. They dug bomb shelters in the backyard. School children practiced cowering under their desks at the sound of the emergency bell.

The proliferation of nuclear weapons and the dissolution of the Soviet Union have changed the mood. Our challenge is no longer eye ball to eye ball confrontation with a single nuclear rival.

In addition to the United States and Russia, Great Britain, France and China now have nuclear weapons. India, Pakistan and North Korea have also tested atomic bombs, and although they have not publicly confirmed it, Israel is known to have nuclear capability as well.

Retaliation has lost its appeal. If the world has learned anything from the centuries old Middle Eastern warfare between Arabs and Jews it is that retaliation begets retaliation. Blowing up your enemies doesn’t bring your loved ones back to life. It only creates and motivates more enemies.

Anyway, how can you retaliate against an anonymous terrorist attack? How can you retaliate against a suicide bomber? The frustration of 9-11 has been that America, the most powerful nation in the world, cannot extract an eye for an eye, cannot simply obliterate those responsible for the cowardly attack upon our homeland.

Al-Qaeda has no borders. Osama bin Laden has no throne, no castle, no city. President Bush determined to wage a war on terror. But a war on terror is not a real War. It is a slogan, like the war on drugs or the war on poverty.

The invasion of Iraq was excused as a preemptive strike. Saddam Hussein was thought to have weapons of mass destruction. So what? Do we invade every country that has weapons of mass destruction? France? China? Not hardly. No, let’s admit it; we invaded Iraq as a symbolic retaliation for 9-11.

And we went in there with no Congressional declaration of war, and no clear military objective. In the Second World War our objective was clear and simple: Unconditional Surrender. What was our objective in Iraq? Simply to oust Saddam Hussein and replace him with a kinder, friendlier potentate? Was it to force the Iraqi people to adopt a democratic constitution and elect new, more agreeable leaders? Or was it simply to colonize the place and establish an indefinite military presence there?

Didn’t we learn in Viet Nam that you cannot subjugate a hostile indigenous population? Has no one in Washington read about the 700 year troubles in Ireland?

In 2008 we elected a new President. Barack Obama made much of his opposition to the Iraq war, and he endeared himself to the young people who opposed the war, and to the liberals who believed that our commitment to the United Nations barred us from unilateral action against any nation.

Now, after almost a year in office, the President still has troops in Iraq, has increased our military commitment in Afghanistan, and is weighing a military surge against the Taliban and aggressive action in Iran.

Curiously, perhaps because he is their hero, the peaceniks have not taken to the streets to protest Obama’s wars.

I’m 80 years old. The United States has been at war for 31 of those years. I’m sick of it. I thought that when V-J day came and the Great War was over, and the United Nations was organized, we could begin to look forward to an era of peace.

Now we live in terror, not so much of invasion or of rockets fired by enemy nations as we are of a nuclear device being surreptitiously delivered to a major city in an eighteen wheel semi and set off by some suicide bent fanatics.

So what should or what can we do about it?

We can try to accommodate ourselves to life in a code red security envelope, though I can’t see Americans putting up with being stopped at every street corner and asked to show their picture ID.

Or we can just decide it’s a dangerous world and learn to live with it.

We can accept the fact that lightening strikes and rivers flood; that tornadoes and hurricanes, and earthquakes and tsunamis happen.

And that insane human conduct is as much a part of nature as any other disaster.

We’re all going to die. Somehow, some day. Alone or with others.

For some people that realization means eat drink and be merry. Suck up all the pleasure and have all the fun you can beg, borrow or steal. As a friend of mine once said, the one who has the most toys at the end, wins.

For myself, there is the vision of the Pearly Gates. As a guilt ridden Roman Catholic, I have been getting ready all my life.

Wednesday, September 2, 2009


I just finished reading a book by Yale Law Professor Jack M. Balkin entitled What Roe v Wade Should Have Said. In it, Professor Balkin and ten of his academic peers from around the country have presented their versions of how Justice Harry Blackman should have explained and justified his controversial pro-abortion decision.

As a former appellate judge and legal educator, I read the tendered alternate opinions with a critical eye.

Not that I’m a fan of Blackman’s opinion. Quite the opposite. Roe v Wade has been picked apart from both the left and the right. It is almost universally seen as a poorly reasoned, poorly crafted apologia for Blackman’s and the Court’s decision to legalize abortion.

So I am tempted to weigh in.

The first lump in the mattress was the United States Supreme Court’s decision to take the case. No one has a right to have their case heard by that august body. At the threshold is a process known as Certiorari.

The Latin word “certiorari” means ‘to be informed of’ or ‘to be made certain of.’ It describes the process by which the Supreme Court decides which cases it will agree to hear. When the Court grants a writ of Certiorari, it in effect says that it wants to become more fully informed about the case. In other words, it agrees to allow the litigants to file briefs and make arguments before the Supreme Court.

The Supreme Court of the United States was created through Article III of the federal constitution. It is given jurisdiction to hear ‘cases and controversies’ arising under the constitution. It was long ago decided, and remains the law today, that the Court has no power to render advisory opinions. It does not, and cannot constitutionally, give legal advice.

The Supreme Court has no power or authority to declare Acts of Congress or laws enacted by state legislatures to be unconstitutional unless it is necessary to do so in order to decide a case or controversy which has been properly brought to the Court.

So much for Con Law 101.

Now come two pregnant ladies in Roe v Wade and Doe v Bolton who claim that the laws of Texas and Georgia respectively have denied them what they claim is a constitutional right: to have their pregnancies terminated by medically administered abortions.

Texas and Georgia object. They point out that both ladies have already delivered their babies; that the children have been received by adoptive parents; that there is no longer any case or controversy between the defendants and the plaintiffs. The matter presented is moot.

Justice Blackman addressed that argument in these words:

"The normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid."

Two points come to mind. First, appellate review is effectively denied in all moot cases. What made these cases different from all those others which the Court refuses to hear because there is no existing case or controversy as required by the Constitution? Isn’t it obvious that the Constitution was intended to deny appellate review where there is no existing case or controversy?

So Harry Blackman thinks the Constitution is too rigid. So what? Who appointed him to amend the Constitution?

Second point. Is it really true that it takes longer to decide a Supreme Court case than it does to have a baby? Doesn’t the Court act in a matter of hours to stay an execution when the Justices think a defendant’s constitutional rights may have been violated? And didn’t the Court find a way to act swiftly in Bush v Gore?

No, Mr. Justice, your argument doesn’t wash. Of course, I can understand why you presented it. Even the most vociferous pro abortion advocates would have been embarrassed if you had simply admitted that your decision was nothing more nor less than outright judicial legislation, justified by you and your colleagues because in your personal opinions the state legislatures were not liberalizing abortion laws fast enough to prevent what some academics were then predicting: a catastrophic population explosion in the twenty-first century.

For better or worse, your draconian solution has been effective. In the past thirty seven years, fifty million Americans were denied the right to be born.

Enough for now. Stay tuned.

Saturday, August 15, 2009


On November 12, 1970, I gave a speech in Miami, Florida to the North American Judges Association. It has a ring of truth for our times. Here it is:

Miami, Florida
November 12, 1970
Remarks by Thomas E. Brennan

Recently, a group of young people in a suburb of Detroit
circulated in a public building interviewing a cross-section of busy Americans.

Stopping men and women at random, the students handed them a
piece of paper, and asked for comment on the words written there.

The words were these:
"...all men are created equal; that they are endowed by their
Creator with certain unalienable rights; that among these are life,liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; and that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, 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."

The passage, of course, was taken from the Declaration of Independence. Only a bare majority of those interviewed recognized the passage.

A substantial number disagreed with the passage, and branded it dangerous, subversive propaganda.

Our first reaction, naturally enough, is to be mildly amused at this little survey. It seems to demonstrate that many of us have forgotten our history lessons - that our patriotism has lost something of the flag-waving sentimentality it once may have had, and that our young people are being better educated in the fundamentals than we admit.

In other times, our first reaction would be enough. But this is 1970. And in 1970, the word revolutionl is seen as much in newspapers as it is in history books.

We talk about the social revolution, the technological revolution, and about revolutions in fashions and mores and education.

We accept the fact that sudden and dramatic changes are taking place in so many areas of our lives.

And yet, we read with horrified disbelief about the activities of those persons both in the United States and in Canada to whom the word ‘revolution’ is not merely a figure of speech, but who have deliberately chosen a course of criminal rebellion and armed insurrection as a means of effecting political change.

We are horrified because we have always thought of our nations as democracies - responsible to the needs and desires of the people; incapable of tyranny and enjoying the broad support of the great generality of men.

And yet, I wonder sometimes how secure we really are.I wonder if the seeds of discontent are not sewn more profusely than we dare believe.

Our forefathers asserted that free men have an ultimate right of revolution. That sounds queer to us. We've ruled it out. It’s barbaric. It's inhuman. It's immoral. Most of all, it's unnecessary.

We are fond of saying to the young people, to minorities, to the disenchanted “Work within the system - whatever your complaints, they can be rectified - whatever your grievances, they can be solved. Peaceful protest, persuasion, education and the ballot box – these are all the tools you need.

But our forefathers were also wise enough to recognize that governments are instituted among men to protect their God-given unalienable rights to life, liberty and the pursuit of happiness.

It was left to our generation to pronounce that government is designed to achieve happiness for all men. And in that foolish Utopian dream, both young and old; rich
and poor; liberal and conservative have joined hands in our day.

We look to the government to secure our happiness. And we expect others to do the same.

The government must prevent crime. The government must quiet the students. The government must becalm the ghettos, satisfy the teachers, meet the demands of the policemen and firemen. And lower the taxes.

The government must abolish racism. The government must eliminate poverty. The government must heal the sick, feed the hungry, clothe the naked, comfort the afflicted and rehabilitate the criminal.

All around us, men look to the government to secure their happiness.

And all around us, men throw up their hands in frustration because happiness remains elusive and dissatisfaction abides.

My friends, a government which is expected to achieve happiness for its citizens is a government which is destined to fall.

No government is eternal. None is all powerful. None is all wise.

Governments are human institutions, guided by trembling human hands, depending on imperfect human wisdom, speaking through halting human voices.

When people delude themselves into believing that government can answer all their prayers, they make that government their God, and they become its creatures and its slaves.

But wishing that government could be God-like, does not make it so. Sooner or later, the people will realize that it is a false idol, a golden calf, more human than divine, more fallible than infallible, more imperfect than perfect.

And they become disenchanted. They become disillusioned. They become disaffected.

So long as government can bestow bounties upon them, they give it their support - but when its power wanes, when its fortunes are reversed, when its money cheapens, they recognize no further cause for loyalty.

And they see that government as an alien power structure, an impersonal establishment, a yoke to be roughly cast off and thrown aside.

We are a free people in imminent peril of losing our freedom. For too long have our people flirted with the deification of civil government.

For too long have we who are in public service flattered ourselves into thinking that if we studied long enough, if we consulted enough experts, read enough reports, held enough hearings, and attended enough seminars, we could adopt perfect
laws, dispense perfect justice, and achieve a perfect social order, in which all wants would be satisfied, and all men would be happy.

There is still time to see ourselves as we really are. And to tell it like it really is.

Neither the United States of America, nor, I am sure,the Dominion of Canada were ever intended to establish a perfect social order.Our constitutions, our statutes, and our common law were given to us by wise and dedicated, perhaps inspired, men.

Still, they were men. With human emotions, and suspicions. Men burdened with self interest and divided by factions.But they knew something about human nature.

They saw themselves as they really were, and they saw government as it really is, and as it must be seen in the eyes of a free people. Not as their master, but as their servant. Not as a triumph of human creativity; but as a compromise born
of mutual weakness and common necessity. Not as the source of benefactions; but as the guardian of Divine Blessings.

If we see ourselves and each other, as we really are, with our strengths and our weaknesses, with our dashes of foolishness and our doses of common sense, then we can begin again to have faith in ourselves and in our common efforts.

And if we see our government as it really is, and expect it to act accordingly, then we shall realize that a government which does what it is supposed to do, can earn the faith and loyalty of a free people.

For just laws are necessary to the governance of free men.

To establish justice.
To insure domestic tranquility.
To provide for their common defense.
To promote the general welfare.
And to secure the blessings of liberty to themselves and their

These are the priorities of government. They are simple and clear.

The power of taxation, the armed might of the people, the right to pass judgment on personal liberty, and to decide the rights and responsibilities of property ownership, these things are entrusted to public officers for the limited terms for which they are elected, and for the limited purpose of carrying on the constitutional functions of civil government.

That means that we who are elected to public office must govern. Not perfectly, but to the best of our abilities. Not for ourselves, nor to serve our own interests, but for the common good.

We must govern, though it be for a time uncomfortable, unpleasant and unpopular. We must decline to use the power of office entrusted to us to promote the welfare of any special interest.

And if anyone among us be so worried about his pension, or his continuation in office that he would place the desires of constituents, the dictates of party, or the hope of favorable public press ahead of the demands of the common good -
Let him hear this.

If we expect the people to have faith in us - If we expect them to believe that given a choice, we will do what is right - Then we must return that faith. And we must realize, that given a choice, the people do not want a government of special privilege.

They want a government of justice.

They do not want public officials who make every decision with a wet finger held to the wind. They want leadership.

Free men do not choose officeholders who coddle their weaknesses, but leaders who appeal to their strength.

Permissiveness in government or in the family, is self destructive. Sooner or later there has to be a confrontation. Sooner or later there comes a time when young people realize that parents who would buy their love at any cost, do not really love them at all. And politicians who would retain the right to govern them at any cost, do not really govern them at all.

For true public leadership, like true family love, is always striving for virtue; building strength for the future, holding out ideals to be sought, suggesting goals to be attained.

All around us, men cry for justice.

And they shall have it, for it is their birthright.

But perfect justice comes only from the Just Creator who waits at the end of our journey through this life.

The justice that we do to each other in the meantime will only be as good as we want it to be, as fair to all of us as it is fair to each of us.

Wednesday, July 22, 2009


The air waves crackle with opinions about the crisis in health care. Congress is cranking up to adopt a massive piece of legislation which will purport to make health care better, more affordable, more accessible for all Americans.

I have my doubts.

Thirty five years ago I started a law school amidst a cacophony of complaints by lawyers and laymen alike that there were too many lawyers. The Thomas M. Cooley Law School is now the largest accredited school of law in the United States with 3,700 students on four campuses and over 13,000 alumni throughout the world.

Employment in the legal profession, like employment generally, is in a downturn. We read about major law firms laying off associates and new lawyers having difficulty finding employment. What we don't hear is anyone outside the legal profession complaining that lawyers are being too competitive, and performing their services at too low a cost.

The ample supply of lawyers has lead to competition, advertising, specialization and innovative delivery of legal services.

Just about the kind of things you might expect in a free market.

Now let's take a look at the medical profession.

There is no comparable medical school to the Thomas M. Cooley Law School. Each year over 500,000 applications are filed in American medical schools, while less than 20,000 students are admitted.

Why? Very simply because the Liaison Committee for Medical School Accreditation maintains a hammerlock on admissions. They refuse to permit any medical school to increase its freshman class by more than ten percent or a maximum of 15 students. They oppose the opening of new medical schools and impose such expensive requirements that new schools or expanded schools are not economically feasible.

I have heard a lot of people complain about too many lawyers. I've never heard anyone say there are too many doctors.

Elderly doctors in small towns can't retire because there is no one to take their places. Young Americans go to the Caribbean or Eastern Europe to study medicine, while hospitals in the United States recruit interns from Pakistan and India.

Sub professional health care jobs proliferate. Medical assistants, therapists, and technicians abound while graduates of U.S. medical schools opt for high paying specialties, and leave the nitty gritty of attending to the sick to clinicians.

"Nurse Practitioners" numbering almost 150,000 try to fill the gap. I suspect the vast majority of them would have gone to medical school if the medical schools had opened the door of opportunity. I never met a paralegal who wouldn't rather be a lawyer.

For those who can afford it, the United States offers the finest health care in the world. What we have not done is to allow market forces to regulate the kind and cost of health care below the premier level.

Perhaps if we opened up medical education to all those dedicated young and not so young people who want to enter the medical profession, we might return to the day when the neighborhood doctor's office was up above the hardware store; your family physician knew your name and lived in your neighborhood; and no one expected the national government to pay the doctor's bill.

And Uncle Sam didn't tell you when it was time to think about dying.

Tuesday, July 7, 2009


I have in hand a letter addressed to Vice President Joseph R. Biden, Attorney General Eric J. Holder Jr. and the leaders of the Judiciary Committees of both Houses of the United States Congress.

The letter is signed by thirty-five law professors and legal scholars. It contains four proposals for legislation by the Congress concerning the United States Supreme Court.

Here are brief summaries:

Proposal One would authorize the President to name an additional Justice to the Court every two years. The nine junior members of the Court would decide the cases. Senior members would continue at full pay and sit only as needed when a sitting justice is recused or ill.

Proposal Two would create a four step procedure to oust a Supreme Court Justice who becomes incapacitated.

Proposal Three would limit the term of the Chief Justice to seven years.

Proposal Four would create a Certiorari Division in the Supreme Court staffed by senior Judges of the United States Courts of Appeals. The Certiorari Division would decide which cases the Supreme Court would hear.

The proposals are not as blatantly political as was Franklin D. Roosevelt’s plan to pack the Court in 1937, but there can be no doubt that the first three proposals would have the net effect of making the Supreme Court more nearly reflect the views of the President of the United States.

In an open letter to law school deans, the proponents describe their proposals and flesh out some of the reasons that have prompted them to advance their ideas.
Undergirding much of the proponents’ initiatives is their concern for judicial superannuation. Supreme Court Justices, they say, live too long, stay on the court too long, become physically or mentally disabled, work less, delegate too much to their clerks, and decide too few cases.

At the same time, some of the professors express concern that the Supreme Court has become a super legislature, making laws which a majority of the Justices feels are in the best interest of the public and justifying their actions by sophistic rationalizations of the constitution.

To some degree, these are related problems. Supreme Court Justices have been known to delay or defer their retirement until after a general election in hopes that a candidate whose opinions they share will be elected.

It is commonplace to describe a given Supreme Court as liberal or conservative. Nose count jurisprudence occupies much of the attention of constitutional scholars and court watchers. How many liberals? How many conservatives? Who are the swing votes?

Almost no one believes that cases are decided in the Supreme Court according to laws and precedents that are dug up through scholarly research. The popular opinion is that the Court’s decisions simply reflect the personal and political preferences of a majority of the Justices.

The view that the constitution is what the Supreme Court says it is prevails in most law school classes, as well as in the popular media.

In short, the United States Supreme Court is generally conceded to be a national oligarchy which rules by fiat.

That fact doesn’t seem to trouble most Americans. Pragmatism is the “ism” of our time; “Gitter done” our national mantra.

Proponents of change don’t much care how it comes about. Presidential proclamation, Congressional enactment, judicial decree, constitutional amendment, and popular referendum are all equally acceptable as long as the result is desired. No doubt a benign and generous military coup would be equally welcomed by many Americans.

In the inner sanctum of appellate courts, the temptation to ‘do good’ hangs in the air like cheap perfume. I remember once telling my colleagues in the Michigan Supreme Court that I doubted we had the authority to take an action under consideration; to which an older justice replied, “If we do it, who is to gainsay us?”

The thirty-five proponents of Supreme Court reform lay claim to being a diverse group of well known legal academics, judges and lawyers. The ‘judges and lawyers’ contingent is minimal. Thirty-one of the thirty-five proponents have email addresses ending in .edu.

A little Googling reveals that the proponents are among the intellectual elite. The Universities with which they are affiliated and from which they have earned degrees; Harvard, Yale, Michigan, Virginia, Texas, Stanford, Duke, Columbia, and Chicago are the same institutions which supply the Supreme Court Justices with most of their law clerks. Indeed these institutions claim as alumni an inordinate percentage of the Justices themselves.

The only problem with the intellectual elite is that they are intellectually elite. They are smarter than most folks and they know they are smarter than most folks. Of them it may be said, with C.S. Lewis:

"Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It may be the better to live under robber barons than under omnipotent moral busybodies. The cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience."

The net result of the academic proposals would be to make the United States Supreme Court younger, more politically attuned, and more productive. They propose nothing to mitigate the power of the Court to issue any kind of edict a majority might agree upon. In fact, revving up the Court would extend its writ at every term.

Whatever checks and balances may exist among the three branches of the national government, there are no similar controls in place to maintain balance between the states and the nation. The rising tide of national power raises all of its constituent boats.

A younger, more vigorous Supreme Court can be expected to bolster the national government at every opportunity.

The notion that self restraint is the only possible limit on the power of the national judiciary assumes that the body politic has no avenue to reassert the vision of the founders.

Our Constitution created a federal republic, not a national democracy and certainly not a national oligarchy.

And the Constitution is still the Supreme Law of the Land.

Saturday, June 13, 2009


Abraham Lincoln called him ‘a misguided fanatic.’ He has been described as ‘a monomaniacal zealot’ and ‘the father of American terrorism.’

He has also been hailed as ‘one of the most perceptive human beings of his generation’, the man who ‘killed slavery’, and ‘an American who gave his life that millions of other Americans might be free.’

When John Brown was hanged for treason on December 2, 1859, church bells rang throughout the northern states. Revered American poets, Ralph Waldo Emerson and Henry David Thoreau, joined in heaping praise on the man who believed that slavery could only be abolished by bloodshed.

The soul-stirring words and music we know as The Battle Hymn of the Republic descended from a Union soldiers’ marching chant that proclaimed “John Brown’s body lies mouldering in the grave; but his soul goes marching on”

The verdict of history needs long and arduous deliberation.

On Sunday, May 31, 2009, in the foyer of Reformation Lutheran Church in Wichita, Kansas – the state where John Brown emerged as a militant abolitionist –George Tiller, a licensed physician, whose Women’s Health Care Services clinic is one of only a few in the nation which perform abortions after the 21st week of pregnancy, was shot to death by an unknown assailant.

No doubt in the days and months ahead someone will be arrested, and charged with Doctor Tiller’s murder. In the course of bringing the killer to justice, America will be plunged into the most emotional debate of the century.

Some will demand that the accused be tried for a hate crime, ratcheting up the punishment if not diminishing the presumption of innocence. If the accused turns out to be someone who has made anti abortion statements or participated in anti abortion demonstrations, those facts will be introduced in evidence as tending to prove that the accused is guilty of murder.

Others will lionize the accused, calling him a courageous hero who acted to save the lives of countless unborn children.

I am, I believe, among a majority of Americans who will view the event with heart wrenching ambivalence. On the one hand no one can or should condone the murder of Doctor Tiller. No one in this country, not even the most avid pro life activists, will advocate for leniency or clemency for Doctor Tiller’s killer. On the other hand, most Americans do not approve of late term abortions, and even the Supreme Court, in Roe v Wade, held that abortions could be restricted in the third trimester, that is, after 24 weeks of gestation.

So there is a recognition, albeit an ill defined acknowledgement, by most people, that, at some point in time, an unborn child begins to acquire civil rights. The right to be compensated for injuries caused by the negligence of a third party, for example, has long been recognized by our courts. The unborn can inherit property. They can be trust beneficiaries. They can be the subject of custody orders in divorce actions.

The abortion debate is visceral and emotional. It is cast in terms of women’s rights, of religious convictions, of moral judgments, and of personal privacy. It is hard to imagine that there is much common ground or room for compromise between the shrill advocates on both sides.

Still there is a simple constitutional question that must be answered, and answered authoritatively, clearly and finally if there is to be an end to this war of words.
That question is simply this: When does a human being become a “person” within the meaning of the Bill of Rights?

The Fifth Amendment, part of the Bill of Rights, expressly provides that “No person shall … be deprived of life liberty or property without due process of law…”

Clearly a state law which permitted a mother or father or both of them to kill their new born child for a month, a day, or even a minute would violate the civil rights of the baby. Even if the child were a burden. Even if the child were deformed. A person is a person. The Bill of Rights protects us all.

The question is, when does it start protecting us? Is there any basis in reason or human experience to distinguish between a new born infant and a fully developed fetus?

If a new born infant is a person within the meaning of the Bill of Rights; if even a prematurely delivered new born, surviving only on mechanical life support is a person protected by the Fifth Amendment; how can it be said that a viable fetus is not a person, even during labor, even after he or she has, through natural biological changes triggered the mother’s involuntary muscular response and initiated the birthing process.

The judgment of history is impossible to predict. John Brown is now revered as a prophet of civil rights and the provocateur of the Civil War.

Perhaps in the twenty second century it will be said that the murder of Doctor Tiller and the trial of his killer became the catalysts of a national debate which ultimately resolved the gut wrenching issue of abortion in America.

I hope so.

Monday, June 1, 2009


I woke up the other morning with a head full of thoughts about our world and our nation and the future, and I found myself mentally making a very passionate speech.

The speech would be full of my opinions. Unvarnished. Unadulterated. Unedited and Uncut. I got to thinking, “Hell, I’m eighty years old. Why can’t I just tell people what I think? Who cares if anybody agrees with me, or if anybody resents what I have to say, or if they write me off as a kook or ridicule me as an anachronistic, arch conservative, homophobic, irrelevant relic of a bygone day.

I’m eighty. I get to say whatever I want to say. Some civilizations revere the opinions of octogenarians. I wouldn’t put the United States of America in the 21st century in that category. The opinion makers in the media put more store in the views of Brittany Spears than those of Tom Brennan.

So be it.

The first thing I want to tell you is that the United States of America is not a democracy. When Mrs. Powel asked Benjamin Franklin whether the Philadelphia convention had created a Republic or a monarchy, he replied, “A Republic, if you can keep it.”

A democracy is ruled by the people. The people are sovereign. There is no law that supersedes the will of the people in a democracy. It is often touted as the rule of the majority, but that’s not always true. Indeed, it is rarely true. Most often the majority are complacent, silent, uninvolved. What passes for the will of the people is the will of those people who are interested, active, determined and successful at acquiring political power. The consent of the governed is more often given by acquiescence than by deliberate covenant.

There is no mention of democracy in the Declaration of Independence or the Constitution, and no responsible American statesman called our nation a democracy for the first hundred years of our history.

In the beginning of the twentieth century, the so called ‘Bull Moose’ or progressive movement brought about the adoption of state constitutional amendments authorizing legislation by initiative and referendum. That excursion into pure democracy has been a mixed blessing. While some salutary statutes and constitutional amendments have been adopted by popular vote, others have soiled the public record with hastily or emotionally adopted provisions, often poorly drafted and fraught with troublesome consequences.

It was Woodrow Wilson who first advanced the notion that our nation is a democracy. He used the term on April 2nd, 1917 when asking the Congress to declare war on Germany. He declared that we must make the world safe for democracy.

Wilson insisted that we had no issue with the German people, only with its unelected Emperor. He said that the Great War was brought about as “in the old, unhappy days when peoples were nowhere consulted by their rulers and wars were provoked and waged in the interest of dynasties or of little groups of ambitious men who were accustomed to use their fellow men as pawns and tools.”

He went on to say that “cunningly contrived schemes of deception and aggression” are “happily impossible where public opinion commands and insists on full information concerning all the nation’s affairs.”

Then he spoke about the “wonderful and heartening” events in Russia where the communist revolution had ousted the Tsar, saying that the Russian people were “democratic at heart.”

The transition from a people’s revolution to a tyrannical dictatorship came quickly in Russia, but it would not have surprised the founders of our nation.

Listen to Samuel Adams: “Democracy never lasts long. It soon wastes, exhausts and murders itself. There never was a democracy that did not commit suicide.”

Here’s Alexander Hamilton: “The ancient democracies in which the people themselves deliberated never possessed one good feature of government. Their very character was tyranny.”

James Madison, who is rightly known as the "Father of the Constitution," wrote in The Federalist, No. 10: "... democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives as they are violent in their deaths."

Perhaps Wilson wasn’t thinking of democracy in the classical, historic sense. In his eyes, a ‘democracy’ was any nation which elected its leaders.

That idea was picked up again 23 years later when Franklin Delano Roosevelt on December 29, 1940, called upon the American people to become the ‘arsenal of democracy.’

Labeling America a democracy in time of war was an effective strategy. The solidarity and sovereignty of public opinion can be the strength of a nation in time of crisis, a self administered ‘little touch of Harry in the night.’

But war time sloganeering is no substitute for rational constitution making.

Our nation was, at its formation, and remains today, a federal republic.
Our Constitution guarantees that every state shall have a republican form of government. That means government not by the people themselves, but by representatives and leaders elected by the people.

In a republic, the people do not decide what is to be done. The people decide who will decide what is to be done.

The government of the United States, created and defined by the Constitution of 1789, is a government of limited, delegated powers. The Executive, Legislative and Judicial branches of the federal government exercise sovereignty only with respect to those objects and powers spelled out in that charter.

The states remain sovereign in all matters not expressly delegated to the United States. That is what the 10th amendment, the last section of the Bill of Rights says.
I happen to believe that the tenth amendment is just as much the law of the land as the first amendment or the second or the fifth.

And the tenth amendment means today just what it meant in 1789 and what it has always meant: that, in domestic matters, the states are sovereign.

If all this sounds as titillating as ‘Civics 101’, let me apply these principles to a few hot button issues of the day.

Let’s start with gay marriage.

I understand that David Boies and Theodore Olson, the lawyers who litigated the infamous case of Bush v Gore are joining forces to ask the federal courts to declare that state laws forbidding same sex marriage violate the fourteenth amendment to the federal constitution.

I suppose those two fellows are pretty smart. They certainly have lots of courtroom experience. But frankly, the idea that the state legislatures which ratified the 14th amendment in 1868 intended to make the laws on their respective state statute books respecting marriage unconstitutional, is absolutely preposterous.

State laws have always specified the conditions for marriage; who can marry, at what age, within what degree of relationship, how a license is to be obtained, who issues it, who can perform the ceremony, what records must be kept and how the marriage can be terminated and under what conditions.

Now I suppose my opinion will win me the label of a homophobe. That’s how the public discourse works in America today. If somebody expresses an opinion you don’t want to hear, you attack that person. Call him or her names. Impugn their motives. Ridicule them. Sneer and holler. Get emotional. Get mad. Get negative. Get vicious.

But like I say, I’m eighty and I don’t give a damn.

The truth is I don’t care a hoot if Vermont allows gay marriage or Tennessee allows siblings to marry at the age of twelve, or Oregon allows assisted suicide or New York allows abortion on demand. These are all things to be decided upon by the duly elected representatives of the people of those states.

What galls me is the festering judicial oligarchy that tolerates and encourages judges, many of who are appointed for life, to make far reaching cultural edicts based on the legal fiction that they are mandates of state and federal constitutions.
Sometimes the judges even have the gall to say that they have decided to issue their dictatorial opinions precisely because the legislature has failed to act!

In other words, if you can’t get legislation through the established processes of republican government, it’s all right to subvert the constitution and ask the judges to do it by judicial fiat.

That sort of end run doesn’t bother most Americans. Pragmatism is the order of the day. “Gitter done” is the mantra. The end is cited as justification for the means.
And anyhow, the means aren’t sexy. The process, the procedure, the rules of the game, are of little interest to people who want to things to be decided in their favor.

Perhaps that is why so many Americans have no concept of how our government works, much less how it is supposed to work. Just watch Jay Lenno go out on the street and ask the folks a few simple questions and you know what I mean.

There’s a TV and radio commercial running these days that begins with the declaration that President Obama has passed such and such a law. Similar statements appear on the Internet. If you were to challenge the sponsor of those ads and point out that it’s the Congress and not the President that passes the laws, I’m sure they would give you a blank stare and say something like “Whatever.”

There is no more pernicious example of judicial usurpation than the infamous Roe v Wade decision of 1972. At the time of that decision, performing an abortion was a criminal offense in every state of the union. There had been some political support for liberalizing those laws in some states, but it was hardly what you would call a ground swell.

The advocates for abortion then and now frame the issue as ‘a woman’s right to choose.’ It sounds very high minded and progressive. Rights are good. Choosing is good.

But the abortion laws never had anything to do with a woman’s right to choose. It never was a crime for a woman to have an abortion or for a woman to attempt to abort a fetus in her womb.

What was outlawed was the action of some other person, whether a medical doctor or someone else, to cause the miscarriage of a pregnant woman. Consent of the pregnant woman was not a defense.

The abortion issue is closely related to the issue of assisted suicide. No doubt the argument will be made, in fact it has been made, that people have a natural right to kill themselves. It will surely be popularized as ‘the elderly’s right to choose.’

The error of this line of thinking is in confusing the power with the right. A woman may have the power to terminate her pregnancy, just as she may have the power to cut off her finger or pluck out her eye. I may have the power to take my own life. But should society confer upon us the right to do those things just because we have the power? And should the community be obligated to let us have help in doing those things to ourselves?

On November 18, 1978, 909 people committed a mass suicide in Jonestown, Guyana. Would anyone argue that the police should not have been permitted to interfere if they had arrived on time?

The regulation of the medical profession, like the regulation of all other occupations, is uniquely a matter of domestic concern and historically has always been reserved to the states under the tenth amendment.

It has always been the case that the prescribing of medications and the performing of surgery are activities for which a state license must be obtained and which must be performed in compliance with state law.

Those laws are made for the health, welfare and safety of the people under what is termed the police power.

Of course the extreme liberal and libertarian view is that the state has no right to tell us what to do, if we are not hurting someone else. Every year we see a defiant parade of motorcyclists wearing no helmets circling the state capital. Of recent days, a national ‘click it or ticket’ campaign has called attention to the fact that failure to fasten a seat belt is a violation of state law.

There are lots of laws enacted to get us to act for our own good.

Police power regulations are uniquely political. They are precisely the kind of laws that belong in the realm of state authority, to be passed or repealed by state officials elected by and answerable to the voters of each state.

While we call ourselves a nation, the United States of America is not a nation in the classic, academic sense. We are not a homogenous, population with a common culture, history, disposition, economy and interest. We are rather the people of fifty different states, with different histories, different temperatures, different natural resources, different geography, different economies, and different cultures and traditions.

Our union was formed in 1789 not by conquest or migration, but by the deliberate, and expressly articulated agreement of representatives chosen by the people in each state. We have lasted and prospered because we are the freest of the free; a land where people can choose not only the weather and the land upon which to build their home, but also the type of community in which they want to live.

The great American experiment in republican government has lasted for nearly a quarter of a millennium. If it falls, if it regresses into mob rule, anarchy and tyranny, it will be because nobody listened to the old guys; nobody cared about our history, or learned about it or understood why we have succeeded thus far.

More than 200 years ago the Frenchman, de Tocqueville, warned that our nation would last only until the people discovered they could vote themselves money from the government treasury.

Perhaps it is the cynicism of old age that prompts me to view the current bailout frenzy as the forerunner of deTocqueville’s prophesy.

I don’t know. But I am eighty years old and next time I am going to trade in my Pontiac for a Ford.

Wednesday, April 29, 2009


I have not studied a Supreme Court opinion in more that 35 years. Even that long ago, I noted a disposition among some justices to reason their way to absurd conclusions.

Varnum v Brien, decided by the Iowa Supreme Court on April 3, 2009, provides a classic example of intellectual versatility. The court concluded that the duly enacted Iowa statute defining marriage as a contract between one man and one woman violates the state constitution's equal protection clause.

To get to its foregone conclusion, the court had to begin by rewriting the statute. The Iowa law said nothing about sexual orientation. The law applies equally to persons of both sexes and of all sexual orientations.

The problem is that the court doesn't seem to know that marriage is a contract; a special kind of contract, one which is affected with the public interest.

The right to make contracts is one of the fundamental freedoms protected by our constitutions. No government permission is required to make a contract to buy a house, or form a partnership, or sell a car. Why do people have to get a license from the government to get married? Because the contract of marriage is affected with the public interest.

Marriage is, at its core, a mating contract. It is the agreement between a man and a woman which enables them to procreate human beings. That's why marriage is so special, so important, so solemn an undertaking. That's why the state regulates marriage, dictates who can marry, at what age, what degrees of consanguinity can marry, what formalities must be observed, how many people one can be married to,and how and why marriages can be dissolved.

The conception of a human being requires an egg from a female and sperm from a male. The DNA of every person is drawn from both parents. Logic, tradition and common sense dictate that both parents should have bonds of affection, responsibility, and dedication with the products of their cohabitation.

Every civilization known to man has had its protocol for marriage. From the most primative tribes to the most sophisticated empires, the natural roles of mothers and fathers are recognized and observed.

Two people of the same sex cannot procreate human beings. They cannot mate. They cannot be mates. It is physically impossible. How then, can they enter into a mating contract? Even the cerebral members of the Iowa Supreme Court cannot make that happen.

What they have done is to redefine marriage by eliminating its core identity as a mating contract. Having asserted that marriage is merely one form of a living arrangement, they then conclude that there is no substantial difference between homosexual and heterosexual unions.

The Iowa decision is another example of permissiveness in high places. If you read the court's opinion, you will see that they were terribly impressed with what nice people the plaintiffs were; school teachers, doctors, lawyers, responsible citizens. And all these nice people want is for the state of Iowa to place it's imprimatur on the form of sexual gratification they prefer.

The courts have already declared laws against sodomy to be unconstitutional. The law allows homosexuals to live together, to adopt children, to leave property to each other, to make any kind of living partnership they prefer. Those incidents are not enough for them. They want their sexual relationship to be equated with that of a man and a woman united in marriage.

Varnum v Brien is an exercise in political correctness which defies logic, common sense, history and the common good. It flies in the face of the will of the people. It is another unhappy example of the black robe syndrome; the mystic infusion of superior wisdom and judgment that is supposed to accompany the installation of judicial officers.

Sunday, April 26, 2009


Well, the Tea Parties are over, for this year at least.

Aside from reenacting the role of Howard Beale in "Network" and giving six or seven hundred thousand Americans a chance to shout "I'm mad as hell, and I'm not going to take it any longer" just what has been accomplished?

The mainstream media ignored the Tea Parties. President Obama claimed not to have been aware of them. Were all those people just shaking their fists at the sky?

Perhaps. No doubt the Republican Party will see in them the seeds of an electoral revival in two years. Conservatives see them as the leading edge of a populist revolt.

Now comes Randy Barnett, Professor of Constitutional Law at Georgetown, who favors the Wall Street Journal's Opinion page with the suggestion that the Tea Parties evidence a public demand for a "Federalism Amendment" to the US Constitution. The good professor has even drafted a proposed five section 230 word amendment which he explains in detail to the WSJ readers.

What caught my eye was his mention of Article V, the constitutional provision which authorizes an amendatory convention to be called on application of two thirds of the state legislatures.

Like so many others, pragmatic politicos and academics as well, Barnett doesn't really want to see an Article V convention. He advocates threatening one in the hope that the Congress will propose his amendment out of fear that two thirds of the states might demand one.

The Friends of an Article V Convention (FOAVC) have watched this bubble burst many times before. One issue advocates demand an Article V convention with tongue in cheek. They don't trust representative self government any more than the nay sayers who oppose a convention for any purpose. They talk and act like they want a convention only to push Congress into proposing their favored amendment.

The Tea Party Movement will begin to have some meaning when its promoters agree that the United States of America is at critical point in its history; that only an amendatory convention as envisioned by Article V can save our nation from consigning the charter of our republican form of government to the archives of history, while each new generation accepts more and more the idea that the federal government is all powerful, above restraint, and beyond the capacity of the citizenry to control.

The mob shouts for a benign dictator. Reasonable voices are hard to hear.

Monday, March 30, 2009

ECON 101

Financial analysts talk funny. Today I received in the mail an article by one of them which highlighted this profound obsevation:

"Debt-financed consumption is no longer a sustainable model for global economic growth."


Did debt-financed consumption used to be a sustainable model for global economic growth? Was it ever? And who in the world was toying with that model?

My Dad used to say that the last depression was caused by speculators and the next one would be caused by borrowers. Prophetic. He died in 1958. Mother always wanted a brick house. Dad was happy to stay in our frame two story home on the west side of Detroit. He said it was paid for and that he could sell shoe laces and live there.

He would have thought debt-financed consumption was insane and immoral. Borrow money to go on vacation? Borrow money to buy Christmas or birthday gifts? Borrow money to spend? Unthinkable. You borrowed money to invest; to buy a house, maybe to buy a car, if you really needed one.

The people of the Great Depression learned to live hand to mouth, scrape to get by, go to bed hungry. Hand me down clothes, half soled shoes, back yard vegetable gardens; these were hallmarks of an era when survival trumped comfort, when a penny saved was a penny earned, when being a debtor was tantamount to being enslaved.

How can anyone be surprised by our current economic collapse when the American people have run up nearly three trillion dollars of personal debt? Didn't anyone wonder why people with no visible means of support were getting weekly offers of credit cards, for which they had been notoriously 'pre-approved'?

And how is it supposed that what we need now is to rev up the flow of credit? The flow of credit is what got us into this mess. What we need now is to pay off debt, save our money, get back to solvency, both as individuals and as a nation.

Of course, that's not what you hear from Washington. Our federal government is all about bailouts, stimulus, spending incomprehensible amounts of money to get us back to the halcyon days of the 1990's when everybody danced and nobody thought about paying the fiddler.

The good news is that capitalism is in the genes. People always act in their perceived self interest. Sometimes that perception is cloudy, and they go off in the wrong direction. But when all the artificial costumes are ripped away, and the king is seen to be in the altogether, people do what they need to do.

The American people say "let the car companies go bankrupt", "let the big banks and investment funds go belly up." At the core, they believe in free enterprise. They know that when you let the losers lose, you make it possible for the winners to win.

An orgy of corporate mergers and acquisitions has given us a corporate landscape bloated with unnecessary employees, duplicate corporate officers,unjustified frills, fringes and favors. In the natural course of events they will crumble and be overtaken by new, lean, competitive organizations with new ideas and a new culture of efficiency.

The cycles of boom and bust, bull and bear, the ups and downs of a free economy are self regulating. They are the self policing consequences of free men and women making free decisions about their own material well being.

America will survive because Americans will survive. The best thing the politicians can do is to get out of the way.

Tuesday, February 24, 2009


With three lawyer sons, and two lawyers sons-in-law, my darling wife has always banned dinner table conversation about the law at family gatherings. I confess that I greatly enjoy those occasions when her instructions are ignored. I always come away from family discussions both better informed and impressed with the level of discourse.

That said, I am pleased to report that our oldest son, Retired District Court Judge Thomas E. Brennan, Jr., has chimed into the Article V blogs with this email:

"Boy, I'm getting a kick out of your last three entries as you answer the challenge of both the conservative business lawyer who reveres the constitution much like the Ten Commandments (Bill) and the liberal academician who treats the constitution as a mere reference point for basic tenets to serve as guidelines (John).

I remember a few years back, while still on the bench, I attended a state-wide judicial conference featuring two renowned Ivy-league professors who debated the issue of judicial activism versus judicial restraint. I asked the perhaps naive question, "Could we not put an end to this constant discussion by simply calling for and advocating constitutional conventions when necessary to keep up with the changing times?" The professors looked dumbfounded at first, before politely answering that, indeed, that could be a solution ... but not likely to ever happen.

At the break, then Michigan Chief Justice Clifford Taylor, a Federalist Society conservative, rudely confronted me with this scold: "That's the dumbest idea you could ever utter! You want to put the future of this country in the hands of a bunch of crazy people!"

His words were as arrogant as the tone in his voice. It is the elitism of our current government officials who feel only they know what is best for the masses that stems any tide for proper reform or affirmation of our constitutional principles.

Besides, maybe the former Chief Justice forgot that the men who gathered in Philadelphia 230 years ago were seen by many of their peers as "crazy" when really they were courageous and determined!"

The shrill outburst by Justice Taylor echoes the reaction of many to the idea of an Article V convention. It grieves me to think that Americans regard their constitutional right to propose amendments so trivially.

Friday, February 20, 2009


This morning, at the fitnerss center, a friend told me he enjoyed and agreed with my son Bill's comments about the constitution. A nice way of saying he doesn't think much of my opinion.

I'm used to being a dissenter. Several years as the lone conservative on the Michigan Supreme Court taught me that it is better to be right than agreed with.

Anyway, I'm delighted to report that another of my lawyer sons has weighed in. Professor John S. Brennan contributes these cogent thoughts:

"Can't say that I agree with everything, but there are some pretty interesting points. I'm thinking about Great Britain, which has a titular monarchy. Everyone knows it is toothless, but it apparently serves an important function. The power it has looks real, but is superficial, yet the role it plays is rooted in its history and connects its people to its past. Maybe our constitution is a lot like the British monarchy. It doesn't play the same role it did 200+ years ago, but its evolution allows the nation to function in a different world. Nevertheless, its history connects us with ideals of the past that we still value. Changing it would be like Britain getting rid of the Queen --- it's already been done, but it's unthinkable."

No doubt that statement would garner an overwhelming "Amen" from law faculties across our great land. They vehemently oppose an Article V convention to propose amendments, while they strenuosly insist that the constitution is "evolving". Amending the constitution by the concurrence of the people of three fourths of the American states is seen as too risky, while changes made by five out of nine justices deciding a case brought by a single litigant are seen as beneficial or unremarkable.

For too many in academia the constitution is a "living" document which contains broad, adaptable principles meant to guide us and all future generations. The solutions to all problems are supposed to be somehow hidden in the ancient rhetoric of the founding fathers.

Thomas Jefferson didn't think so. In a letter to Thomas Kercheval dated July 11, 1816 he wrote:

"Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, I labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book reading: and this they would say for themselves were they to rise from the dead."

Of course, the living constitution error is not the sole property of either party or either side of the philosophic discourse. Consider this: the constitution requires the President of the United States to be at least 35 years of age.

The life expectancy of a male in 1789 was about 44 years. People married at 18 or 19.
If we consider the constitution merely as an historical statement of principles, which can be applied to the changing circumstance of modern times, it would follow that the 35 year old requirement in the constitution translates to 49 years old in 2008 when life expectancy is more than 72 years.

By that logic, Barack Obama was not old enough to be elected to the White House.

But if it were to be claimed that Mr. Obama was disqualified, who would argue for it and who would oppose it?

No doubt the liberals, who typically favor the evolution of a living constitution, would insist on adhering to the expressed words of the 1789 document, while the conservatives, who usually come down of the side of original intent, might just support constitutional evolution.

My point is simply this: in a government of men rather than of laws, partisanship trumps reason; logic dissipates in the face of advantage. Instead of being the supreme law of the land, the constitution becomes a semantic battleground on which contesting political interests hack at each other.

The renowned nineteenth century jurist, Thomas M. Cooley, stated the rule of construction clearly and forcefully:

"A cardinal rule when dealing with written instruments is that they shall receive an unvarying interpretation, and that their practical construction is to be uniform. A constitution is not to be made to mean one thing at one time, and another at some subseqent time when the circumstances may have so changed as perhaps to make a different rule in the case seem desireable."

Cooley insisted that constitutions do not evolve through judicial decisions over time like the common law, and he concluded that judges who attempted to do so "... would be justly chargeable with reckless disregard of official oath and public duty."

The emails from Bill and John reflect the general state of public opinion on the matter of an Article V convention. The corporate lawyer and the law professor, the minions of both left and right, all seem to agree that the American people are not to be trusted with choosing delegates to an amendatory convention.

The founding fathers would weep. Pity.

Thursday, February 19, 2009


My recent musings about the rise of socialism in America prompted a thoughtful, if somewhat emotional response from the General Counsel of the Bissel Corporation, who just happens to be my son, Bill.

His points are so well expressed and so typical of the views of patriotic citizens, that I thought it well to repeat some of them here:

"It's not just the words that mean something to us all; it's the credibility of their writers, [Washington, Franklin, Jefferson, and Adams]the sacrifice by all those who have fought for the ideals they held, and the respect our people have for that document and its history. New and better words, if that were even possible, could not replace what the Constitution has come to mean to the people of this country.

Bottom line: let's not toss our Constitution; let's just do a better job of living by it."

Most Americans believe as Bill does that the Constitution somehow restrains the actions of elected officials. It doesn't. It's supposed to. It was intended to. It declares itself to be the supreme law of the land. Above the Congress. Beyond the President. Over the Supreme Court.

But is that the fact? At the Harvard Law School and elsewhere in academic circles, they teach that the Constitution is what the Supreme Court says it is.

Does anyone in Ameica really believe that we have a federal government of limited delegated powers, or that the several states are sovereign in all matters not expressly consigned to federal authority?

I learned in law school sixty years ago that the states have "police power" which meant that it was left to the states to make laws defining crimes and providing for their punishment. It was the province of state governemnt to legislate all the do's and don'ts affecting the health, welfare, and morals of their citizens.

Does anyone in America today doubt that the federal government has assumed the authority to dictate every facet of our lives, to control our economy, to decide who gets what?

Nearly two hundred years ago the French historian, Alex de Tocqueville, in his seminal work, "Democracy in America" warned that our federal government might become a vast tutelary authority which would dictate all the minutia of life. It was his view that people who try to vote themselves rich end up voting themselves into slavery.

I do not share the widespread skepticism about constitutional reform. Our experience in Michigan in 1963 convinced me that delegates to a convention are more inclned to think long term than congressmen and senators. Only a convention would propose term limits for the Congress. Only a convention could draft a balanced budget amendment with teeth in it. Only a convention can reign in a supreme court that presumes to treat the constitution as its intra office memorandum.

But most of all, I'm grateful for Bill's email because Article V of the Constitution is still there, it was written by the same patriots he reveres, and it deserves thoughtful, thorough, reasoned debate and discussion.

Tuesday, February 17, 2009


The cover of the February 16th issue of NEWSWEEK magazine carries the chilling message that socialism has arrived in America. The extensive cover story effectively argues that the United States of America has become the Socialist Union of America.

Goodby USA. Hello SUA.

NEWSWEEK points out that the election of Barack Obama was not the beginning of the transformation from USA to SUA. It was the final step, the confirmation of a trend that began 77 years ago with the election of Franklin Delano Roosevelt and has crept quietly and inexorably upon us ever since.

It has not been the sole province of Democrats or Republicans. In fact, as NEWSWEEK so accurately notes, the 700 billion dollar Bush bailout in the summer of 2008 effectively nationalized the mortgage banking industry. It was a bipartisan capitulation to government management of the economy.

I have long been a proponent of calling a convention to propose amendments as provided in Article V of the constitution. Thirty years ago, I wrote a law review article entitled "Return to Philadelphia." I still think it's the right thing to do.

On that subject however, I have been mostly a voice crying in the wilderness. Liberals and conservatives have both opposed the idea, curiously enough because they both fear that the other side would dominate a convention and propose amendments they regard as anathama.

The Friends of an Article V Convention (FOAVC) of which I am a founding member, takes great pains to distinguish between a convention to propose amendments and a full fledged constitutional convention, summoned to rewrite the supreme law of the land.

Opponents of a convention insist that there is no way to limit the delegates; once they are convened and organized, they might do just as the Philadelphia convention did, and scrap everything in favor of a new document. Which is why strange bedfellows like the John Birch Society and the ACLU unite in opposition to a convention.

So be it. Perhaps the time for pussyfooting is over. Maybe its the season for all Americans of good will and common sense to say, "Hey, let's put the cards on the table and battle our philosophies of government to the finish. Let's see what kind of a government the people really want in the twenty first century. And let's put it down on paper in clear, unambiguous English language. Or some other language, if that's what the people want.

The preamble to the Philadelphia constitution defines its purpose this way:

"We the people of the United States of America, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare and assure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution"

Would the current citizenry prefer something like this:

"We the people of the Socialist Union of America, in order to form a sovereign central government, establish equality, insure a prosperous economy, provide for the abolition of war, promote the physical, environmental, and economic welfare of every person, and assure the blessings of freedom and privacy to ourselves and our posterity, do ordain and establish this constitution"?

I like the old version. But I would rather have a whole new written constitution than a nation which simply ignores its fundamental charter and allows itself to be ruled by politicians and media pundits.

Sunday, February 8, 2009


The other day, the St. Pete Times invited its readers to weigh in with their ideas on how to stimulate the economy.

What a novel idea! Asking the citizens and taxpayers what they think ought to be done! Does the St. Pete Times really think that just maybe all truth and knowledge may not reside in Washington D.C.?

I confess that the invitation intrigued me. I like to work Sudoku puzzles and play Spider Solitaire on my computer. Solving problems is my thing. So here's my idea:

Congress should provide a tax deduction for all money paid for services rendered.

Think about it. There must be trillions of dollars paid out every year in America for all kinds of services. Dollars paid out by homeowners, and citizens of every stripe for personal services that are not rendered to businesses.

Hire a man to paint your house. You pay him with dollars on which you have already paid taxes. He will have to pay taxes on what you pay him. How many times should the government tax that money? If he is painting your store or your office, his bill is tax deductible. But if he paints your house, it isn't.

Do we want to stimulate employment? Making service invoices tax deductible will encourage Americans to hire people. Not only that. It would slice into the underground economy. How many tradesmen don't declare all their gross receipts? What about undocumented aliens? Most folks don't ask to see a green card from the fellow who cuts the grass or trims the bushes.

I wouldn't make it mandatory for people to give tradesmen a 1099. But if you want to take the tax deduction, you'd have to do it.

Of course we all know deserving men and women who live in the underground economy. They get paid in cash. They don't report all their income. They don't pay self employment taxes. They just stay under the radar and try to make ends meet.

The Federal government should have a threshold amount that a person can earn from self employment before tax liability -- either income tax or self employment tax -- is imposed. We all know that small business is where most jobs are created.

People who go into business for themselves should be encouraged. Making them pay taxes, even making them file complicated tax returns does just the opposite. The cleaning lady who grosses less than $20,000 a year shouldn't have to pay taxes. Instead, the feds should credit her with a contribution to the social security system, so that she will have some modest retirement benefit when the time comes.

Current law requires anyone making more than $400 a year from self employment to pay self employment taxes of 7.65%. The cleaning lady who makes $20,000 would have to pay $1,530 in self employment taxes. No wonder most of them are driven underground.

Is that how our Congress plans to stimulate the economy and create jobs? There has to be a better way.