Saturday, May 29, 2010


The confirmation hearings for Solicitor General Elena Kagan’s appointment to the United States Supreme Court will begin in June.

No one seriously expects them to be very news worthy. After all, the President’s party has a majority in the Senate. They will be swift to approve his choice.

President Obama is a liberal. He governs from the left. He has his political agenda. Abortion. Gay rights. Union power. Green power.

People expect the President to use his authority to appoint Supreme Court Justices who will advance his political agenda.

Liberal Presidents appoint liberal Justices. Conservative Presidents appoint conservative Justices. That’s the way the world works.

And the winners expect the Court to bend the law in their direction.

In this pragmatic world, very few people believe that there is such a thing as a non partisan judge. And very few people expect judges to do anything but vote their political preferences.

Of course there have been some very noteworthy exceptions, at least on the surface. Republican John Paul Stevens, appointed by President Gerald R. Ford, has hardly carried the mantle of a conservative. Neither did Earl Warren, a former Republican Governor of California. Dwight Eisenhower thought the Warren appointment was the worst mistake of his presidency.

The Constitution of the United States says very little about the Supreme Court. Just this:

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."

Nowhere does it say there shall be nine Justices. The number of members of the Supreme Court is left to the Congress. Back in the 19th century, the Congress enlarged the court as a way to overrule its decision outlawing paper money.

In the 1930’s Franklin Roosevelt tried to pack the court with supporters of his progressive social agenda. He failed, but nobody questioned the power of Congress to pack the court, if they had the votes.

During my years on the bench in Michigan, all of our judges were elected on non partisan ballots. I always liked the system, and believed that it produced courts which were less beholden to political power brokers.

Recently, a group of law professors from around the country has been promoting an agenda of judicial reform. They have some valid points. Supreme Court Justices usually stay too long. They wait for a President of their own political persuasion to be elected before they step down.

Or maybe they just like to be part of the power structure themselves.

Being a proponent of an Article V amendatory convention, I have given some thought to judicial reform myself. My contribution would look something like this:

“The Supreme Court shall consist of the nine present justices and their successors, each of whom shall be appointed by the President from a list of three candidates nominated unanimously by the Supreme Court and shall serve a term of eighteen years. Former justices may be called for temporary judicial service by the Chief Justice.”

One benefit of this system would be that the political agenda of a President, whoever he or she may be, becomes secondary to the common purpose of the members of court to select persons with whom they can all work comfortably.

While the system would not completely eliminate partisanship on the court, it certainly would tend to put party affiliation on the back burner.

At least it's worth talking about.


Tuesday, May 18, 2010


Curious about President Obama’s latest choice for the Supreme Court, I looked up Elena Kagan’s 1996 article in the University of Chicago Law Review, entitled, “Private Speech, Public Purpose.”


The lady sure knows how to make things complicated. Makes me glad I’m no longer a sitting appellate court judge who has to untangled her words and make some sense out of what she is trying to say.

The gist of her law review article seems to be that if she had been on the Supreme Court at the time R.A.V. v City of Saint Paul was decided, she would have voted to uphold Saint Paul’s “hate speech” ordinance.

Here’s what the ordinance said:

"It is a misdemeanor to place on public or private property a symbol... which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender."

In the R.A.V. case, the defendants were teen age boys who burned a cross on the property of a black occupant.

The trial judge threw the case out, the Supreme Court of Minnesota reinstated it, and the Supreme Court of the United States threw it out again by a vote of 9 – 0.

It was the opinion of the learned justices that the ordinance violated the First Amendment to the Constitution of the United States. In other words, the Minnesota boys were merely exercising their constitutional right of free speech.

Now I’m sure it would come as a shock to most Americans to be told that the City of Saint Paul has no power to ban the burning of crosses on other people’s front lawns.

But in the esoteric world of constitutional law, the issue is not always what we expect.

In the R.A.V. case, the Court said, in effect, you can outlaw fighting words, but not just those based on race, color, creed, religion or gender.

So to hang Minnesota Twins manager Ron Gardenhire in effigy on his front lawn would not violate the ordinance, unless, of course the people doing the hanging were black and the effigy had the word “whitey” on it.

For my own part, I have never much understood the legal cases that deal with actions as speech. I suppose the old axiom, “actions speak louder than words” is the reason behind that line of judicial opinions.

Still, it seems to me that there is a difference between doing things and saying things, and the First Amendment has to do with saying, not doing.

The exception to the First Amendment for so called “fighting words” stems from the idea that some speech is more like ‘doing’ than ‘saying.’ In other words, if the law can punish you for assaulting another by swinging a baseball bat at him, it can also punish you for picking a fight in other ways.

But the exception for “fighting words” is limited to those situations where the people are nose to nose, and the fight is imminent. You can’t be guilty of using “fighting words” when you write someone a nasty letter.

Frankly, I think the problem in the R.A.V. case was simply that the city council was trying to be politically correct. I cannot conceive of any court in the land throwing out an ordinance which would make it a misdemeanor to trespass upon the land of another for the purpose of disturbing the peace.

That would be a “doing” ordinance, not a “saying” ordinance.

Ms. Kagan builds a long winded theory about governmental motive which sounds to me like she would approve of outlawing speech which is not politically correct.

I sure hope she doesn’t convince four other justices to agree with that idea.

Thursday, May 13, 2010


One of my pet peeves is the way radio and television commercials repeat telephone numbers.

Typically stated in a loud, annoying sing-song, the advertiser’s phone number is repeated three times. At least three times.

No doubt some high paid and highly educated Madison Avenue gurus have discovered that repeating the number three times is necessary to pierce the veil of distraction that protects most people’s sanity.

There is, I am sure a whole science of communicating with the public. Slogans that resonate, ditties that stick in our craws, subliminal messages that persuade without conscious attention; these are the stuff that sell stuff.

The pros know how to say it, but if you are an amateur, you can really botch the message.

Reminds me of the trial judge down in Texas who used to have a sign posted prominently on his bench:


Case in point.

Yesterday, after blogging about the new web site,, I got an email from a very intelligent and well educated friend who told me that he was sorry that he couldn’t “go” to ConventionUSA because he had a conflict on the “date.”

I was confused. ConventionUSA is a virtual convention which will be conducted on the Internet. The only place the delegates will have to “go” is to the computers in their own homes.

And since the business of the convention will be conducted by asynchronous emails and Internet message board postings, there is no specific “date” on which the convention will take place.

Then it dawned on me.

The home page of carried a news release about a symposium which is planned for Cooley Law School in September. While the symposium will deal with Article V conventions, it is an academic exercise not otherwise related to ConventionUSA.

Big mistake.

Busy folks, scanning the home page would assume that the September symposium was the convention. They would not be likely to read the detailed rules which describe the way the convention will work.

My fault.

But then maybe ConventionUSA is too big an idea, too momentous an undertaking, to be evaluated by scanning a home page anyway.

The Congress of the United States has ignored over 700 petitions from state legislatures asking for an Article V convention. There are still shrill voices fretting about a ‘runaway’ convention which can ‘rewrite the constitution’ or ‘repeal the Bill of Rights,’ even though those arguments have been thoroughly refuted.

The job of ConventionUSA is to prove that patriotic Americans, dedicated to the renewal of our constitutional republic can and will propose useful and desirable amendments, which will not only improve our government, but will reignite public confidence in and support for our democratic institutions.

It will take some time. Until there are delegates from 34 states, those who register will constitute a committee of organization which will refine and recommend Rules for the operation of the convention.

I’d be glad to answer any questions.

Wednesday, May 12, 2010


In July of 1774 fifty-six men, representing thirteen British colonies, wrote their names at the foot of a three page document declaring America’s independence and detailing the actions of King George and the English Parliament which justified their action.

It was an act of treason, bold and dangerous, which left no room for compromise.

Every one of them knew what they were doing. The last sentence says it all:

“And for the support of this declaration, with a firm reliance on the protection of Divine Providence , we mutually pledge to each other our lives, our fortunes and our sacred honor.”

I’ve always believed that sentence defines true patriotism.

Jumping in with both feet. Total dedication. Going ‘all in’ to borrow a phrase from Texas hold ‘em.

In a small way, with a few friends, I am about to embark on a modern day journey of patriotism. I don’t expect to be hung for treason, but there is a real risk of embarrassment and failure.

Still, it is a project that I believe is sorely needed in our nation, and if we don’t make the effort, the price America will pay is dear indeed.

Our nation is in the throes of political malaise beyond anything in my memory.

Proponents of the hard left and the far right are uncompromising. Perhaps worse, there is a growing body of independents which has lost confidence in the whole democratic process.

American politics have always been down and dirty; but the ubiquitous Internet has raised the cacophony to deafening levels.

I have written here before about the need for an amendatory convention under Article V of the U. S. Constitution. It’s a theme I have been whistling for nearly thirty years.

Now the time has come. The Internet is salted with proposals for constitutional reform. State Legislatures are awakening to the need. Proposals for amendments crop up across the full political landscape every day on the web.

It’s time to go to work. It’s time for serious discussion, debate and decision.

It’s time for the people of the fifty states to assert their God given right to review, reform and renew the compact they made with their federal government written in Philadelphia in 1787.

It’s time for Convention USA.

Convention USA is a true convening of the people of the states. Any interested citizen who is willing to undertake the burden of being a patriot is welcome to become a delegate and participate in the work of the convention.

We invite liberals, conservatives, Republicans, Democrats, Libertarians, Socialists, Independents, students and retirees, city folk and farmers, men and women, of every race, color, religion and every shade and hue of the political spectrum to join with us.

All we ask is patriotism and civility. The kind of love of country that prompted men like Washington and Jefferson, Hamilton and Adams, Franklin and Madison to sacrifice for their freedom and ours, and the kind of mutual respect that permits us to disagree without being disagreeable..

The web site is

The convention needs you, the nation needs you. And so do your grandchildren.

Sunday, May 9, 2010


My last posting took issue with the so-called “Congressional Reform Act of 2010.”

Dumb idea.

OK. So it’s a dumb idea. Got a better one?

You betcha.

How about this as an amendment to the United States Constitution:

"Members of Congress shall be compensated only during their term of office and only in a static amount to be determined after each decennial census by the President with the advice and consent of a majority of the Governors of the several states."

“Members of Congress” includes members of both the House and the Senate.

“Shall be compensated” includes all salary, benefits and perquisites.

“Only during their term of office” eliminates the possibility that any form of compensation, such as a pension, would be paid after leaving office.

“Only in a static amount” bans an escalating salary based on the Consumer Price Index or any other changing standard or definition. It puts the Congress on the side of keeping United States currency as a stable and reliable medium of exchange.

“To be determined after each decennial census” allows for adjustment every ten years, to reflect long term changed conditions.

“By the President” assures that the decision is made by someone who is politically responsible to the people of the United States.

“With the advice and consent of a majority of the Governors of the several states” assures that the decision is approved by officials who are politically responsible to the people, but not as part of the federal government establishment.

I have no illusion that what I have offered here is either the best or the only way to deal with the problem of Congressional goodie-grabbing.

But I submit that it is an attempt to do something that can in fact be done, and that most probably would have a beneficial effect.

I invite all who read these words to weigh in.

How would you do it? What words would you use?

That is what an Article V Convention empowers the American people to do; come together and reason together. Kick it around. Find the best solution.

It’s the American way.

Saturday, May 8, 2010


A friend sent me an email the other day, forwarding another signed by “A Fellow American.”

The subject was a thing called the “Congressional Reform Act of 2010” the object of which is to rein in the United States Congress, an institution which Fellow American says has the lowest approval rating of any entity in government.

The proposed legislation lists eight objectives which, no doubt, would get a rousing cheer from most Americans. Term limits for Congressmen and Senators; no pensions for former members of Congress; no exemption from Social Security; make them pay for their own retirement; no more voting themselves pay raises; no Congressional health care system; no exemptions from any laws imposed on the American people; all government contracts with former members of Congress to be void.

Fellow American ends his letter this way:

“We need to get a Senator to introduce this bill in the U.S. Senate and a Representative to introduce a similar bill in the U.S. House. These people will become American heroes.”

It would be funny if it were not so pathetic.

It cannot be that a grown man really believes any member of Congress could be persuaded to propose term limits for himself and his colleagues. Or even more incomprehensible, that somehow a majority in both houses might adopt such law.

Not to mention that, if such a thing were actually passed, it would not be promptly declared unconstitutional by the Supreme Court.

The Constitution specifies who can be elected to Congress. Only the Constitution can mandate term limits.

Perhaps I should be encouraged by the evidence that there are so many people in America who are fed up with the mess in Washington.

Maybe, somehow, some way, some day, the screaming protesters and silent cynics will come to understand that a convention under Article V is needed, that it is the only way to fix things, and that it represents no danger to our republic or our liberties.

Maybe if I, and others who agree, keep talking about it, keep writing about it, keep trying to break through the fog of ignorance and the smog of suspicion there will one day rise in this great nation a chorus of patriots demanding the right guaranteed by Article V of the United States Constitution; the right to meet in solemn convention as citizens of the several states and to propose those salutary amendments to our Constitution which experience has taught us are needed.

Maybe someday those who scream and protest and carry signs and march and shout at the TV cameras will come to realize that real change can only come in serious and thoughtful debate and discussion; that statesmanship is not amenable to sound bites; that crafting changes in the Supreme Law of our land is not a parlor game.

It has been my experience that there are two paradigms of civic leadership; patriots who risk their lives, their fortunes and their sacred honor to advance the cause of liberty, and entrepreneurs who surf the waves of public opinion for profit and power.

My encounters with the TV talking heads who whip tea Party folk into a frenzy suggest that they are primarily businessmen. They make their living doing what they do.

If any real progress will be made in America, it will come from the true patriots of the twenty-first century, those who see the work that needs to be done, and just go ahead and do it.

Saturday, May 1, 2010


When Governor Jan Brewer of Arizona signed Senate Bill 1070 into law last month, the salsa really hit the fan.

From ballplayers to bishops, from Congressmen to commentators, the hew and cry of illegal, discriminatory racial profiling has been raised to a fevered pitch.

Even before the law was signed, the case of Abdon, the licensed commercial truck driver who was handcuffed and taken into custody because he wasn’t carrying his birth certificate, was broadcast across the Internet, and he became the unwilling poster boy for the Nazi-ization of Arizona.

I’ve spent some time reading Senate Bill 1070, and I must confess that as piece of legislation it leaves a lot to be desired.

One section, for example, which is intended to curb the employment of illegal immigrants, requires the Attorney General to publish a form on which citizens can report the employment of illegals by their fellow Arizonans.

It then requires the Attorney General and the county prosecutors to investigate any employer whose employment practices have been challenged by somebody on an official form.

The statute prohibits an accusation based entirely on the race or color of the workers. That’s fine. But the statute doesn’t require any basis for the accusation to be recited in the form.

The form may not ask for the complainant’s social security number nor does it need to be notarized. Not being notarized is an off-hand way of saying that the accusation does not have to be made under oath.

Even more troubling to my lawyer’s sensitivities is the next line in the statute which authorizes, though it does not require, the Attorney General and the local prosecutors to investigate employers based on complaints which are not made on the official form.

Then just so there is nothing left to doubt, the statute says:

“This subsection shall not be construed to prohibit the filing of anonymous complaints that are not submitted on a prescribed complaint form.”

I have no doubt that these and other sections of the new law will be struck down as soon as they are challenged in the Federal Courts.

As they should be.

But if the new Arizona law goes too far and offends our constitutional sensibilities, is it really enough to strike it down, shrug our shoulders and concede that nothing can be done to combat the surge of illegal immigration that threatens to inundate the southwest?

The Constitution of the United States authorizes the Congress to enact uniform naturalization laws. It doesn’t mention immigration, though there is a large body of opinion which holds that the federal government has the inherent right and the implied duty to control our national borders.

The United States Code is full of minute regulations about who can come here, how long they can stay, what they can do, what they must do and what can happen if they don’t.

But the sad fact is that our federal government has neither the will nor the way to enforce its immigration regulations.

Aside from the occasional demonstration raids on selected employers, the Immigration and Naturalization Service, which has been subsumed into the Homeland Security Office, has been eminently ineffective in stemming the tide of humanity from Mexico.

Arizona and the other border states have a right to protect themselves. They have a right to step into the breach and enforce the laws which Uncle Sam ignores.

Hispanic organizations have been vocal in their criticism of Arizona, but do they really want to see the Grand Canyon State boycotted? Don’t they have the same interest as the rest of the country in preventing illegal immigration?

I’d be interested to hear what Ozzie Guillen, Jose Sulaiman, and Cesar Izturis think Arizona should be doing about the problem.