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.