Tuesday, March 30, 2010


The nationalization of health care in America has become the most divisive political issue in my memory.

It virtually defines the right and the left, liberals and conservatives, Republicans and Democrats.

It divides TV channels, friends, families, even husbands and wives.

Case in point. My good friend, Ernie Phillips confesses being totally confused by the arguments of his two, intelligent, passionate brothers who come at him from opposite sides of the issue.

Like Ernie, I have a disposition toward peacemaking. Thus this effort to look for common ground.

To begin at the beginning, I pose the question, who should pay for health care?

For the moment. let's leave the question of affordability out of it.

The question is, in a perfect world, who has, or should have he legal and moral responsibility to pay the doctor, the nurse, the druggist and the hospital?

Here's a list of possibles: the city, the county, the state, the federal government, the insurance companies, the patient, the parents, the children, the grandparents, the grandchildren, the neighbors, the church, the rich, the middle class, the employer, the taxpayers, the Chinese.

OK, I wasn't serious about the Chinese. Just trying to keep the discussion light hearted.

I suspect that both sides would agree that the patient is or should be the primary source of payment for his or her own health care.

Conservatives might then say, "Case closed. Let the free enterprise system take it from there."

Liberals, of course, will reply, "Wait a minute. What if the patient can't afford to pay?"

Ok, let's assume the patient can't pay. Take the patient (and the Chinese) out of my list of possibles, and ask the question again.

Who has, or should have the legal and moral responsibility to pay for health care, if the patient cannot?

The first answer that comes to mind, and probably most folks, regardless of political persuasion would agree on this, is "It all depends."

Are we talking about a new born baby? A college student? A ninety year old? A wounded veteran? A policeman or fire fighter injured in the line of duty? Victim of an earthquake, hurricane or tsunami? Or of a nationwide epidemic?

Should it matter that the patient's malady stems from voluntary causes? The obese patient with diabetes or heart trouble? The helmetless motorcyclist? The smoker with lung cancer?

Our churches and our humanity teach us that all people have obligations in charity. To feed the hungry, to shelter the homeless, to heal the sick, to comfort the afflicted, to teach the young, to help the poor, to defend the weak, to bury the dead.

But leaving the health care of the needy to private philanthropy would not satisfy even the most conservative precincts. Someone has to decide who takes care of those who cannot take care of themselves.

While most folks agree on that point, they part company on the question of who should make those decisions.

For over 200 years in America, health care has been dealt with by state and local governments. Doctors, dentists and nurses are licensed by the states; cities and counties have established hospitals. Health insurance providers have been regulated by state laws and state insurance commissioners.

It has long been assumed that health care comes within the residue of state sovereignty protected by the tenth amendment. Our constitutional founders intended to leave state governments in full control of the health, welfare and safety of their citizens.

Even the most ardent conservative will have to concede that if a given state wants to enact a system of socialized medicine, it would have the perfect right and power under the constitution to do so.

That is one of the great strengths of our federal union; the states can experiment. If the people don’t like it, they can move to a state which is run more to their liking.

Nationalized health care deprives the states of their power to decide who pays the doctor, and takes from all Americans of the freedom of choice which the founders intended them to enjoy.

Thursday, March 25, 2010


I was interested and pleased to see that my recent blog about health care and the nanny state drew a well stated comment from across the aisle.

Melemel recited the litany of benefits which are supposed to flow from the Patient Protection and Affordable Health Care Act which was signed into law this week.

Of course, debating about whether the law will accomplish the laudable goals its supporters expect is a bit like arguing about which team will win the NCAA basketball tournament.

We all have our opinions, but only time will tell.

My criticism of the health care bill was never grounded in opposition to the objectives it seeks to achieve. No one in America should doubt that health care costs have escalated to an onerous level.

The essence of my complaint is that the law attempts to nationalize an enterprise which for over 200 years has been considered properly regulated by the individual states of the union.

Every state has an insurance commissioner. Indeed, PPAHCA requires the Secretary of Health and Human Services, (who may now be called the health care czar) to consult with the National Association of State Insurance Commissioners before promulgating the many new rules the bill authorizes.

Not all the ills the law is supposed to cure are everywhere in need of curing. I know that Blue Cross of Michigan, for example, already is obligated by state statute to insure any resident of the state regardless of pre-existing condition.

The essence of insurance is the pooling of risk. At root, a health insurance company is nothing more than an agreement among a group of people to pay each others’ doctor and hospital bills.

Why should the people of Montana or Wyoming be required to share the health care risks endemic to New York or San Francisco?

The larger issue here is not health care, but constitutional democracy. When our nation was formed, a representative in Congress had a constituency of about 30,000 people. Today it is more than three quarters of a million.

Soliciting the votes of a million people costs money. Lots of money. Which is why big money people have so much clout in Washington, D.C.

The more the minutia of our daily lives is regulated by the federal government, the less control we have as individuals, the less influence we are able to exert upon those who govern us.

Should a twenty-six year old have a right to remain on his or her parents’ health insurance? Admittedly a popular provision to garner the college vote, but hardly a rule that has universal application. When I was 26, I was a lawyer, a husband and a father. I venture to say that the vast majority of people that age haven’t lived with their parents in years.

Why does the federal government have to take that decision away from the state legislatures?

The list of special treatments goes on and on. In 2,700 pages, the Congress has cobbled together a cornucopia of benefits and privileges that garnered a bare majority vote.

Its supporters expect that nationalized health care, like social security, will become a fixture in American life, such that no one will dare to suggest its repeal.

They may be right.

Sadly, de Tocqueville may also have been right.

Wednesday, March 24, 2010


Henry Walls told me you wanted me to talk about the Constitution.

The United States Constitution was written in 1787.

In 1787 the original 13 states had a population of about four million people. Less than a quarter of the present state of Florida.

President Obama can get from New York to Los Angeles and back again in the time it took George Washington to get from New York to Philadelphia.

If Thomas Jefferson wrote a letter to Alexander Hamilton, it took two weeks to get to him. Today we have instant messaging.

In 1787 there were no telephones, no electricity, no air conditioning. George Washington had false teeth made out of wood. Doctors tried to cure pneumonia and tuberculosis by draining blood out of their patients. Women didn’t vote and black people were still being bought and sold.

The world has changed in 223 years.

The Constitution written in Philadelphia in 1787 is a truly marvelous document. It launched a federal republic that was intended to be permanent. It is the charter of our nation; the compact between the people of the states and their government.

It was meant to last, but it wasn’t meant to be static.

We know it was meant to last because the founding fathers designed the constitution to change; to keep up with the times.

They knew nothing about computers or atomic bombs. They had no automobiles, much less airplanes, and rocket ships.

But they did know that change would come. They did know about the corruption of power and the dangers of partisanship.

They did know about the weakness of human nature and the temptations of self interest.

They did know that the constitution would have to be amended.

Not just once, not just ten times. But over and over. In many ways that they could not foresee. In ways that only experience would teach their successors.

That's why they wrote Article Five of the Constitution of the United States.

Article Five provides two ways to amend the Constitution.

First, the Congress can propose an amendment by a two thirds vote in both houses. That has been done successfully 27 times.

The second way is for two thirds of the state legislatures to request a convention to propose amendments. In that case, the constitution requires the Congress to call a convention. That has never been done, despite the fact that every state in the union has requested a convention.

Either way, an amendment must be ratified by three fourths of the states before it becomes part of the constitution.

Not a lot of Americans know what Article V says or understand what it means.

Like many parts of the constitution, Article Five was a compromise.

Some delegates, including Alexander Hamilton, wanted to simply let the Congress propose amendments and the states ratify them.

But George Mason, a delegate from Virginia, argued that members of Congress would never propose amendments which might limit their own powers or benefits, and he convinced the Founders to provide for the Article Five convention as the only effective way for the people of the states to combat an oppressive, run away federal government.

Twenty-seven years ago, I wrote a law review article entitled “Return to Philadelphia.” It was a call for a convention to propose amendments to our constitution. I brought a few copies along with me tonight for those of you who may be interested.

I reread that article against the background of where America stands in 2010, and I am even more convinced that an Article V convention is the only way the American people can take their country back from the politicians and lobbyists and media moguls who are running this nation into the ground.

It’s the only way to change the way things work in Washington.

But it isn’t going to be easy.

When Delegate George Mason predicted that the Congress would oppose needed reforms, he knew what he was talking about.

In the 223 years of our Republic there have been 750 petitions from the state legislatures for an amendatory convention. Every state in the union has asked for a convention, more than once.

But the Congress simply ignores them. They haven’t even bothered to count them or to put them someplace where they can be seen.

It wasn’t until last year, when a group called Friends of the Article V Convention hired researchers to comb through the Congressional archives that anybody really knew how many petitions have been filed.

And ignored by the Congress.

People ask me, “How are you going to get the Congress to call a convention? If they have been ignoring state petitions for 223 years, how do you expect to get their attention?”

My answer is very simple: ‘I think it’s time for a tea party.”

Nine days before Christmas in 1773, nearly 7,000 noisy people gathered on the waterfront of Boston Harbor to protest the duty imposed on the importation of tea by the British Parliament.

To get their point across, those angry folks boarded three British ships and dumped their cargos of tea into the water.

The Boston Tea Party led to the organization of the Continental Congress; the Declaration of Independence, the Revolutionary War, the Articles of Confederation and finally, just fourteen years after the Boston Harbor was turned into a giant tea pot, the Constitution of the United States was adopted and the greatest nation of the face of the earth was born.

You folks have gathered here tonight because you are part of another Tea Party.

People like yourselves, all over America, are coming together, and they want to be heard.

Ordinary folks. Many of whom – most of whom --have never been involved in politics or government.

They listen to the radio, they watch the television, they read blogs and web sites and countless emails and videos buzzing around the Internet.

They talk to friends and neighbors, and they are worried.

They wonder what’s happening to America, what’s happening to our country.

They try to understand what a trillion dollars means.
And three trillion and ten trillion.

Two years ago, 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 even to read the legislation they want us to accept on faith, too many of our people are unemployed; too many are disillusioned, too many are disgusted and discouraged.

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

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, 55 years later, he is the longest serving Congressman in the history of the United States of America.

His district has been drawn and redrawn every ten years. Today, it’s about twenty miles down the Detroit River from where it was when he was first elected.

Politicians know how to play the game of politics.

That’s why ninety percent of the incumbents are reelected.

What we have to do, my friends, what you and I have to do, is to change the rules of the game.

And that means we have to amend the constitution.

Some people gasp with horror at the thought that anyone would tamper with the precious document written by James Madison, Thomas Jefferson, Alexander Hamilton, George Washington and Benjamin Franklin.

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

Thomas Jefferson warned us that the constitution isn’t some sacred covenant that can’t be touched. The Founders were good men, but they expected their work to be changed, and improved down through the years.

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 ten years, but they don’t talk about Article Five.

Like many constitutional scholars, they agree with Charles Evans Hughes who said, “The Constitution is what the Supreme Court says it is.”

And Felix Frankfurter, who told law students, “The Supreme Court is the Constitution.”

Personally, I prefer the view of Judge 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.”

Alexander Hamilton agreed. He reminded us that the constitution can only be changed by a solemn, official action of the people, and that public officials can’t ignore the constitution just because they think that’s what the public wants.

I hear law professors say that getting three fourths of the states to agree to amendments is too difficult. And so they want the Supreme Court to bury the constitution under a mountain of interpretations that they call constitutional law.

I don’t buy it.

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.

The law professors talk about the constitution as a living document. They say it is constantly evolving to reflect community standards.

My friends, that is sheer nonsense.

The constitution is a living document because it contains within its 4,608 words, the means for its own amendment.

It is a living document because it gives the people of the United States the right to demand a convention to propose amendments.

And I’m telling you here tonight that an Article V convention is long overdue.

But 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.

There’s a lot of anger in America today.

A lot of people feel like Howard Beale in the movie, Network. They’re mad as hell, and they’re not going to take it any more.

But shaking our fists at the sky and calling people names isn’t going to fix anything.

I’m sure that over the next several months a lot of candidates for public office will come by and want to speak to you folks.

They’ll want to talk about deficit spending and health care and bailouts and all the rest of the hot button issues of the day.

They won’t want to talk about amending our federal constitution. That’s not an issue that’s on the front page or on the TV.

But do yourselves and your grandchildren a favor.

Ask those candidates where they stand on the issue of an Article V convention.

Make them stand and be counted for it or against it. And make them give their reasons.

What we need in America today is statesmanship.

A rebirth of intelligent, rational discussion and honest debate.

A renewal of interest in and appreciation for the charter of our liberty and the compact that we the people made with our government over two centuries ago.

Our Constitution is a living document. It is intended to be permanent. It has within its own four corners the means to renew itself, to grow, to adjust, to change.

But we have to love it with all of our hearts. We have to take care of it. We have to write the checks and make the sacrifices, and work for the amendments that will help our constitution withstand the conniving and the twisting and the sheer indifference of the people who are in power.

Their attitude seems to be that they are the rulers, that the Constitution is theirs, that they own it.

But they don’t own it.

The Constitution belongs to all the people. Not just the Founding Fathers who wrote it in Philadelphia, not just the thirteen colonies that ratified it, not even just the millions of Americans who have loved it, and sworn to uphold it and died to defend it.

It belongs to you and to me. To the people of Pasco County. To the folks in Dade City. To the kids in our schools and old people in our neighborhoods.

It belongs to all of us. Not to the Supreme Court. Not to the law professors at Harvard and Yale, not to the Congressmen and Senators or the President of the United States. Or NBC, or CBS or Fox News.

When Benjamin Franklin walked out of Convention Hall in 1787, a woman asked him what sort of government we will have. He answered, “ A Republic, madam, if you can keep it.”

Thomas Jefferson thought we ought to have a convention every 19 years to keep our constitution up to date.

We haven’t done it.

We have failed Mr. Jefferson and Mr. Franklin. We’ve failed Mr. Washington and Mr. Madison and Mr. Adams.

The Constitution of the United States is the charter of our national government.

We, the people of every state, have the right and the high duty to amend it, to update it, to fix it, to make it work the way we know it can and should work.

We have a right to a convention, and if you folks and all the other tea party people who want change they can believe in will stand up and speak up, we shall have it.

Saturday, March 20, 2010


The talking heads on television have announced that tomorrow will be an historic day. The stage is set for a show down vote in the United States Congress on the celebrated health care bill.

Not wanting to be left out, I decided to skim a few of the 2,074 pages of the Senate version.

As I ploughed through the incomprehensible obfuscation which passes for federal legislation, I could not help but think of Alexis de Tocqueville, the 19th century French philosopher who visited and wrote insightfully about America.

Tocqueville had many good things to say about our country, but he also expressed some chilling fears about the kind of tyranny that lurks in the bowels of a democracy.

The Frenchman warned of an elected tutelary master.

I love that word, ‘tutelary.’ It means protective oversight. Like a guardianship. Or a guardian angel.

Tocqueville feared that Americans might one day surrender their freedom to an elected government which would dictate every detail of their lives, supposedly for their own good.

He envisioned a race of people living aimless, compliant lives in which every choice has been made for them, every decision preempted, every need and want provided for, every opportunity foreclosed.

In short, the Nanny State.

Nothing could be more nanny-esque than the convoluted concoction known as Obamacare.

And what struck me mightily as I read it was the absolute disregard for even the appearance of constitutionality. It used to be the practice for Congress to preface every piece of economic and social legislation with a recitation linking their purpose to the regulation of interstate commerce.

That was at least a nod to the plan of the Founding Fathers that the federal government was to be one of limited and expressed authority. If the constitution didn’t say they could do it, they couldn’t do it. That was the great scheme concocted in Philadelphia in 1787.

But this time they didn’t bother. The bill dives right into telling insurance companies, states, hospitals, doctors and patients what they can and cannot do.

Nanny says. That’s all the authority they assert.

And I have to chuckle over the last minute reports from the Congressional Budget Office which purport to justify the bill’s economic outlay.

I wasn’t fifty pages into the health care bill, and I saw a number of blank check appropriations giving the Secretary of Health and Human Services the power to spend whatever was needed for this purpose or that.

How the CBO can tally up the economic impact of blank checks is a puzzlement.

Another thing. The bureaucracy being created boggles the mind. Exchanges, Navigators, Co Ops. The list goes on and on.

One particular provision caught my eye. The bill calls for ‘Contract Administrators.’ These will be private business entities hired by the government to oversee the activities of the bureaucrats.


A virtual cornucopia of patronage will spill its goodies into the laps of the political party in power.

And why not?

It works in Chicago, doesn’t it?

Saturday, March 13, 2010


My February blog about gays in the military drew a generally favorable comment from AnOldSoldier77, who took me to task for using the phrase ‘military mucky mucks’ to describe Secretary of Defense Robert M. Gates and Chairman of the Joint Chiefs of Staff, Admiral Mike Mullen.

Far be it for an old judge to pick a fight with an old soldier, but I must have a further word on the subject.

First off, he is quite right in saying that the phrase ‘mucky muck’ has a somewhat negative connotation. While the primary dictionary definition is merely “a high ranking government or corporate official,” the phrase has a secondary suggestion of one who has been elevated beyond his or her competence.

I confess that the negative sense of the phrase is exactly what I intended to convey.

As I viewed the hearing before the Senate Armed Services Committee, and as it was later reported in the media, Secretary Gates and Admiral Mullen were both insisting that the armed forces they represent were diligently developing guidelines for a new policy which would comply with President Obama’s State of the Union call for abolition of ‘Don’t Ask, Don’t Tell.’

Here were two men who have taken an oath to support and defend the constitution of the United States who apparently believe it is their duty to support and defend the political positions of the Commander in Chief.

The President of the United States is commissioned by the Constitution to ‘take care that the laws are faithfully executed.’ He does not make the laws. Laws are made by the Congress.

“Don’t Ask, Don’t Tell” is the law of the land, duly enacted by the Congress of the United States.

The authority of the President as Commander in Chief does not make him a dictator with power to order military personnel to disobey, ignore or oppose the laws enacted by the Congress.

Members of the armed forces are not functionaries of the Obama administration. They are under no obligation to carry a brief for the President’s political agenda. Neither do they, by reason of their oath, surrender their rights as citizens of the United States, to entertain, express and advance their own views of public policy.

And that includes the question of gays in the military.

Just a few weeks ago we read that Tony Perkins, President of the Family Research Council, a former Marine described as an ordained minister of the gospel, who had been invited to give a devotional talk at the National Prayer Luncheon at Andrews Air Force Base, was summarily ‘uninvited’ to speak.

The letter from the Air Force Chaplain’s office canceling his appearance made reference to Perkins’ support of the ‘Don’t Ask, Don’t Tell’ policy and attempted to justify the affront saying that Perkins’ opinions were “incompatible with our role as military members who serve our elected officials and our commander in chief.”

It would be my opinion that any officer who thinks it is his role to serve the commander in chief has been elevated beyond his competence and therefore deserves to be called a mucky muck.

The military oath requires members of the armed forces to obey the orders of the President of the United States and of all superior officers according to regulations and the Uniform Code of Military Justice.

It says nothing about “serving” the president or pandering to his wishes or advancing his political initiatives.

Or silencing those who disagree with him.

Thursday, March 11, 2010


The recent decision of the United States Supreme Court in Citizens United v Federal Election Commission has inched its way onto the public stage through a couple of side bar stories that have the kind of controversy which makes for media “info-tainment.”

It began when President Obama took an unprecedented shot at the Supreme Court during his 2010 State of the Union address, and Justice Samuel Alito was seen mouthing the words “not true” in response.

The story got more legs yesterday when Chief Justice John Roberts criticized the President’s comment during a lecture to law students at the University of Alabama.

Now the legislature of the sovereign Commonwealth of Pennsylvania has jumped into the fray. House Resolution 653, after some explanatory statements seeks a resolution asking Congress to propose a constitutional amendment as follows:

Section 1. Congress shall have the power to limit the contributions to or expenditures by any person or committee made in support of, in opposition to, or to influence in any way the nomination or election of any person to Federal office.

Section 2 similarily authorizes states to outlaw contributions to help candidates to state office.

Resolution 653 is a very bad idea. To begin with, it would allow congress to outlaw expenditures even by a candidate himself, his family, friends, neighbors and supporters. Beyond that, it would permit legislation curtailing the freedom of speech of anyone who seeks to persuade voters in any way.

I wonder who the supporters of Resolution 653 think should pay for political campaigns. The government? Heaven help us! If anyone wanted to insure the reelection of incumbents, it would be through public financing of political campaigns.

Federal election laws are already a maize calculated to obfuscate and discourage opposition. Franking privileges, government paid staff, and numerous other perks already foster reelection of incumbents. Cutting off the funding of opposition candidates would be a final death knell to democratically elected representative government.

Is anyone so naïve as to believe that McCain-Feingold was enacted by law makers with any other purpose in mind than to improve their own chances of reelection?

If there is any place where laissez faire should be the preferred public policy it should be in the political arena.

‘Tis said that all is fair in love and war. If that be true, then the same should be said of politics. Any attempt to set limits on the effort which free men and women can make to achieve election in a democratic republic has the aura of tyranny.

The real evil in campaign financing is not who gives or how much; it is in why money is given and what is expected in return.

Campaign contributions become bribery when elected officials are allowed to dole out goodies to their friends and contributors. Exposing corruption is an endless, full time job.

Eternal vigilance is the price of liberty. It was ever thus.

Wednesday, March 10, 2010


The mood in America smacks of exasperation with politics, government, television, and newspapers.

The Internet, with its ubiquitous opinionizing, has fostered multi faceted debate which seems to fit poorly into the divisions between traditional Democrats and Republicans. People talk of ousting all incumbents in Washington, in effect saying “a pox on all the politicians; sweep them all out of office.”

But they say so for different reasons. Angry liberals and disenchanted conservatives mouth the same complaints. Many blame the ‘two party system’ for stalemate in Washington, and the whole index of chicanery, deceit, favoritism and duplicity that seems to characterize the process of law making and public administration.

Still, I don’t think many of the complainers would like to see the United States develop a multi-party political landscape like France, Iraq and other places.

Legally, that kind of thing could happen. Not probable, but possible. Neither the Republican nor the Democratic Party is mentioned in the Constitution of the United States or in any state constitution that I am aware of. The parties are both grass roots organizations depending on the voluntary participation of citizens for their existence and support.

All states have laws which permit the organization of political parties. Wikipedia lists 38 parties known to exist in America. Historically, they have never caught on, at best playing the role of spoilers, or would-be spoilers.

In my view, both logic and history support the two party system.

The logic is simple: every decision comes down to yes or no; do or don’t, aye or nay. A smorgasbord of solutions never solved a problem. Only a course of action decided upon and acted upon can be a solution. In human affairs, community action must be voted up or down, or nothing ever happens.

In multi party parliamentary democracies, the plurality winner of an election must put together a coalition majority in order to govern. It isn’t unusual for nations to be paralyzed with nobody at the helm until some such coalition can be put together.

In the U.S., having two sides of the aisle assures that someone will be in charge. Party members may not agree on all points in their platform, but for the purpose of organizing the legislature, they stick together and are identified as either the minority or the majority.

Historically, our two parties first surfaced in Philadelphia during the constitutional convention. Essentially, it was the dichotomy between those who wanted the power centered in the national government and those who wanted a limited national government, with most of the domestic power retained by the states.

The Federalists favored national power. The Anti-federalists wanted state power. The Federalists won the first three presidential elections. In 1800, Thomas Jefferson won, supported by people who called themselves Republicans or Democratic Republicans. Their defining issue was states’ rights.

Under Andrew Jackson in 1830, the party became known as the Democratic Party and was opposed by the Whigs whose main organizing thrust was opposition to the Democrats.

The Republican Party was born in 1860 with the election of Abraham Lincoln. Opposition to slavery was an important battle cry, but so was preservation of the union. On that point, the Republicans were the descendants of the 1789 Federalists.

Franklin Roosevelt’s New Deal completely redefined the Democrat-Republican dichotomy in America. FDR’s activist efforts to deal with the Great Depression all operated to strengthen the national government at the expense of state sovereignty. The emergency measures enacted during World War II further asserted federal power over domestic affairs.

The Obama administration seems to believe that the notion of delegated and limited federal power has been completely overturned by custom and acquiescence. In their view, the federal government has full police power and the Congress may legislate on any subject.

Curiously, the remnant of the Republican Party might be redefining itself as the party of Thomas Jefferson, the party that champions the rights of state governments to pass laws which deal with the health, safety, education and welfare of their citizens, without interference from Washington, D.C.

America’s two major political parties are always in transition. It will be interesting to see how they present themselves in the mid term elections later this year.

Saturday, March 6, 2010


Nine days before Christmas in 1773, nearly 7,000 noisy people gathered on the waterfront of Boston Harbor to protest the duty imposed on the importation of tea by the British Parliament.

To get their point across, those angry folks boarded three British ships and dumped their cargos of tea into the water.

The Boston Tea Party led to the organization of the Continental Congress; the Declaration of Independence, the Revolutionary War, the Articles of Confederation and finally, just fourteen years after the Boston Harbor was turned into a giant tea pot, the Constitution of the United States was adopted and the greatest nation of the face of the earth was born.

2009 will be remembered as the year of the second tea party. In the face of a deep recession, bank failures, mortgage foreclosures, and multi-billion dollar government bailouts of financial institutions and automobile companies, a noisy wave of political discontent has washed across the United States of America.

Several people claim to have launched the tea parties. Critics have labeled them “Astroturf” movements to denigrate their grass roots formation.

Perhaps the most celebrated prophet of tea is Rick Santelli, a CNBC financial commentator who delivered a much seen and quoted rant on February 19, 2009.

With hand waving emphasis indicative of his Italian heritage, Santelli excoriated the government for “promoting bad behavior” specifically, as he said, requiring taxpayers to underwrite the failure of some homeowners to make their mortgage payments.

Insisting that market cycles are self correcting, and that government is incapable of managing the economy, Santelli concluded by observing that Benjamin Franklin and Thomas Jefferson “would roll over in their graves.”

Now the Tea Parties have coalesced into a national convention which heard an address by the ‘rogue’ Republican, Sarah Palin.

Nobody knows who the tea partiers are or what they want.

I have been invited to speak to a local Tea Party in Pasco County, Florida on March 16. They want to know more about the U. S. Constitution.

That’s my cup of tea. Twenty-eight years ago, I wrote a law review article entitled, "Return to Philadelphia."

If you're interested, go to www.foavc.org, click on "Articles" and scroll down to mine.