CHANGING AMERICA

BERRIEN COUNTY BAR ASSOCIATION
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 FOAVC.org.

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.