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.