Tuesday, August 31, 2010


Saw Mayor Bloomberg bantering with Jon Stewart on television.

His Honor was making the case for the construction of the Islamic facility near ground zero.

He pointed out, quite accurately, that, if the folks who want to build it own the property and comply with all the building ordinances of the city, they have the same right to use their property as any other citizen.

Then he added that there are saloons and porn shops and all other kinds of land uses that some people don’t like in the neighborhood.

It’s a free country and hey, this is New York City. This is the Big Apple.

And so it is.

Being a lawyer and former judge, I am quick to stand up for the legal right of the owners of property to use it as they wish. Even if it’s unpopular. Even if it is intended to be confrontational.

But defending someone’s right to speak is not the same thing as agreeing with what they say.

And defending someone’s right to be confrontational is not tantamount to backing down or surrendering.

My concern about the proliferation of Islam in America goes to the heart of the philosophical differences between democracy and theocracy.

There was a time when Christian theocracy was prevalent. Indeed, one of the titles still held by Queen Elizabeth is “Defender of the Faith.”

In the middle ages there were ecclesiastical courts which functioned along side the English courts of common law.

The Roman Catholic Church still exercises law making powers, and convenes courts to enforce canon law.

The difference lies in the Islamic tradition of enforcement. Islamic or Shariah Law is not just enforced by education, moral persuasion and excommunication. It is enforced also by the sword. It asserts the right to decree the death penalty.

That, my friends, is the essence of sovereignty.

Sovereignty is the police power. The power of force. Ultimately the power of life and death.

In America, sovereignty is in the people. That’s why the second amendment gives us the right to bear arms.

That’s why our Constitutions, both state and national, divide the power to make, execute and interpret the laws among three separate branches of government.

So that no one man, nor any one group of men has the power of life and death.

The essence of the Islamic faith is doing the will of Allah. That’s a familiar idea to anyone who, as I did, learned in school that God made me to know Him to love Him and to serve Him.

But Christians gave up burning heretics at the stake centuries ago.

Islamic law still commands the death penalty for apostasy.

Judeo Christian civilization has long since learned to render to Ceasar the things that are Ceasar’s.

The concept of a sovereign civil government which respects religion, but is separate and neutral as to religious faith and discipline is the hallmark of western political thought.

That is worth fighting for.

Friday, August 27, 2010


The proposed Islamic center a few blocks from ground zero got me to thinking.

That, and the Muslim hostess who insists on wearing her hijab instead of her Disneyland costume.

What the heck is going on in America?

I Googled up an article from the Office of International Criminal Justice at the University of Illinois. Entitled “Islamic Law, Myths and Realities,” the essay tells us that Islamic Law provides two ways to protect the five ‘indispensables’ of religion, life, intellect, offspring and property; moral education and deterrent punishment.

Deterrent punishment includes the full range of options available in our criminal justice system. And then some.

In the Islamic tradition, there is no separation of church and state. Islam is a theocracy, that is, a government controlled and operated by a self perpetuating oligarchy of religious leaders.

About a quarter of the Earth’s population is Muslim. They tend to gather in communities and impose their Shariah law, ignoring the civil and criminal laws governing the rest of the people.

Sort of like the Amish, only with knives and swords.

We have freedom of religion in America. It’s a fundamental right protected by our Constitution. But it’s not absolute.

If your religion says you should behead your wife if she chats it up with the milkman, the First Amendment isn’t going to keep you out of jail.

President Obama took a lot of flack for saying that America is not a Christian nation. Deservedly so, from a cultural standpoint.

But the fact is that the United States is not a theocracy. Our customs and our laws have come down to us through Christian civilization, but our nation was not founded by religious leaders.

The United States of American was founded by the people.

To be sure, the hand of the Almighty was there in Philadelphia. But not in the garb of the clergy. He was there in his role as the Creator of the universe and everything – and everybody – in it.

Our Constitution was Divinely inspired only in the sense that the Founders were using their God given intellects and free will to design a government which would in the words of Thomas Jefferson, “most likely effect their safety and happiness.”

The idea that God somehow ordains certain people, because of their lineage, or their education, or their wealth, or their holiness, or their sheer chutspah or charisma to be the rulers of the people simply does not sit well with Americans.

We believe that the people are sovereign. All the people. The young, the old, the black the white, the rich the poor, the smart and the dull. Male and female. Straight and gay. Hispanic and Anglo and Asian and everything in between. All the people.

I suppose there are some well meaning, loyal Americans who would change the First Amendment if they could. But if permitting Congress to establish a religion would mean overriding the sovereignty of the American people, and changing our form of government to an Islamic theocracy, it would be more than just an amendment. It would be the abolition of our constitutional system.

The University of Illinois paper urges us to open our minds and expand our knowledge base, and insists that Islamic Law can solve contemporary crime problems.

So could the mafia. So did Hitler.

I think we should fight like hell to save our country.

Tuesday, August 24, 2010


For the umpteenth time, somebody sent me an email trumpeting something called “the 28th amendment.”

One of the emails even suggested that I am supporting or promoting it.

Not so.

Well, not exactly.

I’m all in favor of amending the United States Constitution. In fact, I have been working very hard to organize an amendatory convention on the Internet.

And I certainly agree that something has to be done to rein in a Congress which seems to think it has the right to spend the public treasury on whatever it wants, including benefits for the Representatives and Senators themselves.

But the email that is going around is full of misconceptions and misinformation.

First, the number of Governors who are suing the Federal Government over the Health Care Bill has nothing to do with a convention or any constitutional amendment.

Article V of the U.S. Constitution requires Congress to call a convention for proposing amendments when requested by the legislatures of two-thirds of the States. That’s 34 States, not 38 as claimed in the email.

The convention would not be a constitutional convention. A constitutional convention writes a constitution. That’s not what an Article V convention does.

An Article V convention is an amendatory convention. Article V speaks about amendments to THIS constitution. It does not authorize or contemplate a new or different constitution.

Which brings me to the actual language of the so-called 28th amendment, being circulated by so many well meaning Americans. It says:

“Congress shall make no law that applies to the citizens of the United States that does not apply equally to the Senators and/or Representatives; and, Congress shall make no law that applies to the Senators and/or Representatives that does not apply equally to the citizens of the United States.”

The first part sounds pretty good. But does it refer only to laws that apply to all citizens or to any law that applies to any citizens?

I suppose it was intended to mean that Members of Congress couldn’t exempt themselves from Social Security taxes or from military conscription. But doesn’t it also say that members of Congress must receive food stamps, and every other entitlement that any citizen gets?

The second part makes no sense either.

If members of Congress must do for all citizens whatever they do for themselves, it follows that they must pay every citizen a Congressional salary, currently $174,000 a year, and provide every citizen with whatever else members provide for themselves, such as an office in Washington, D.C.

The writing of a constitutional amendment is not something that can be done by somebody sitting at his kitchen table. It requires thought, study, and careful examination by lots of different pairs of eyes.

After all, the Constitution and its amendments are the supreme law of the land. They must say what they mean and mean what they say.

Which is why I insist that an Article V convention is needed. Not just a single purpose, one-time gathering to push a particular amendment, but rather an ongoing, permanent institution which will run every idea for constitutional change through a meat grinder of critical thought and debate, so that whatever ultimately goes to the states to be ratified is worthy of the support and approval of all Americans.

In the words of George Washington, it must be the “Explicit and authentic act of the whole people.”

Sunday, August 22, 2010


When I’m not playing golf, I spend a lot of time rummaging. It’s what old people do.

A week or so ago, rummaging through some old speeches, I happened upon one I gave in Battle Creek, Michigan on September 28, 1968. It started out like this:

“Tonight, I have the honor of escorting my little princess – my daughter, Peggy.

I enjoy these periodic chances to be alone with my children – one at a time.

The long, pleasant drive along the freeway is a time to get better acquainted, to catch up on what’s happening, to answer questions and to listen.

Listen to what they think. Listen to their hopes and their dreams. Learn a little about what puzzles them, what frightens them, what worries them.

We hear a lot these days about the generation gap.

I suppose there is no way to prevent the gap between parents and children. The rushing of the years between us has carved out a natural gulf. We are on this side, and they are on that side.

But it is possible, I think, to build bridges across that chasm.

Not mighty, four lane highways, perhaps. Not like the Big Mac or the Ambassador Bridge.

But we can build simple homemade foot bridges. They will be tenuous and shaky. They will rock perilously in the wind. But if they are fastened securely at both ends with clamps of love, they will be strong enough for people to cross – one at a time.

It seems to me that the job of parents is to test that bridge, show that it can be crossed, and then, through our encouragement and by our example, see that our children cross over, bravely and safely to the other side of the ravine – the side reserved for adults, only.”

The rest of the speech was about the 1968 Democratic convention in Chicago and the generation gap between the adults who were there to nominate candidates for President and Vice President, and the riotous young people in the streets who wanted, among other things, an end to the Viet Nam War.

I wondered aloud whether the young people were disillusioned with the establishment because their parents had told them, “you can’t fight City Hall.”

Or if they had lost faith in the democratic process because their parents had told them that “politics is a dirty business.”

Those young protesters talked about a sinister conspiracy they called the “power structure,” and I wondered if it was because their parents left government to the experts, thought that government could create wealth out of thin air and that the ineptitude and corruption of public officials could somehow be corrected by the newspapers or the TV, and they didn’t have to get involved.

That was 42 years ago.

The pot smoking students of 1968 are now in their sixties, fretting about their social security, bouncing between Keith Olbermann and Glen Beck, and hoping that somehow they can get out of Iraq and Afganistan, avoid a nuclear confrontation with Iran or North Korea, prevent economic domination by the Chinese, and convince their children to get married and spawn some grandchildren.

That twelve year old girl who went to Battle Creek with me so long ago came visiting with her husband last week end.

We had seventy two hours of titillating conversation, debating, laughing, catching up and just listening to the voices of people we love very much.

Peggy is now a lovely, grown up lady married to a great guy. They have four beautiful, college educated daughters, who seem to be crossing the bridge to maturity just as surely as their mother did.

Maybe, just maybe, we old timers shouldn’t worry so much about the future.

Sunday, August 15, 2010


The Constitution is the supreme law of the land. Article VI says so.

So what does that mean? What is law anyway? Why do we have to have laws? Isn't it enough to have Czars and other government officials to tell us what to do?

Lots of Americans are leery of the law. To them, law is mysterious, opaque. The domain of lawyers and judges who talk a hokus pokus language that nobody understands.

Or trusts.

Thomas Aquinas taught that law is a rule of reason, ordained and promulgated by proper authority and directed to the common good.

You can't have law without words. The rule of reason has to be expressed in words. Words that say what the law giver means. Words that can be understood by the people who see them or hear them.

That's why Hammurabi's Code was inscribed on pillars in the town square and why Moses came down from Mount Sinai with words on tablets of stone.

It's axiomatic that in the United States, we have government of laws and not of men. Our rights and duties as citizens are spelled out in words, printed and published in books. Available on the Internet.

We have a tradition, inherited from our English forebears, called the Common Law. Sometimes it is called 'Judge made law' because it grows out of the decisions of courts in individual cases.

Human life is very complicated. Things keep happening that never happened before. People keep getting in disputes that are not easily settled by reading the laws that have already been written by the legislature.

So judges have to figure out what should happen. And when they do, they write their opinions in words that get printed in books, so that next time something like that happens they'll know what to do.

Old Judge Tom Cooley, the 19th Century intellectual heavyweight who wrote a treatise on Constitutional Limitations, made it very clear that constitutions are not supposed to be changed by the common law.

In fact he said that any judge who tried to change the meaning of a constitution to "keep up with the times" would be guilty of violating the oath of office.

Article VI requires that judges swear to support “this constitution.” What else does “this constitution” mean except the very words being read?

Now comes Yale University Law School with a different idea.

Yale’s Dean, Robert Post, welcomed participants in a symposium entitled “The Constitution in 2020” by announcing that there is a New Haven school of constitutional theory which holds that the charter of our nation written in Philadelphia in 1787, while intended to be enduring and permanent, is being changed all the time by a process of metamorphosis.

The folks at Yale seem to think James Madison and company concocted a caterpillar which they can coax into a butterfly with a barrage of academic double talk.

Even after throwing a fig to John Marshall by quoting from Marbury v Madison,

“ The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained?”

Dean Post acknowledged that while the constitution was intended to be fixed, “we presuppose that it will change.”

Change without being amended. Change without what George Washington called “the authentic act of the whole people.” Change without ratification. Change without the consent of the governed. Change that only scholars and law professors can predict.

I don’t buy it.

I don’t think the Yale Law School faculty speaks for the American people.

Thursday, August 5, 2010


Buried in two large cardboard boxes in the basement storage room of our Northern Michigan cottage are eight thick books filled with speeches. They represent the work of a lifetime.

Sometimes Polly will get to poking through them in search of some ancient memento. Like last week.

We were entertaining some old friends, classmates of mine from grammar school and high school. Polly wanted to show them a commencement speech I gave at the University of Detroit High School back in 1969 The Jesuit faculty liked it well enough to have it printed and sent to their alumni.

I had talked about freedom, and here is what I said:

“If I were 18 years old, as you are, my dear graduates, and I could walk out of here into the cool night air and take a deep breath and look at all those zillions of stars in the sky, My definition of freedom would be: ‘I can do anything I want to do.’

Maybe that’s your definition – it’s not bad for starters. But there are some holes in it. I'm thinking now of the story of the two delegates to the elbow bender’s convention, who are looking out of the hotel window at a motionless figure on the sidewalk below, and one of them says,

‘Did you see him jump?’

And the other says, ‘He didn’t jump. He was trying to fly up to the roof.’

And the first one says, ‘Why didn't you stop him?’

And the other replies, ‘I thought he could make it!’

So the first limitation to our definition of freedom is that we are only free to do those things which are physically possible.

And the same goes for financial possibility, as well.

You may all be free to do anything you want to do. And you may all want to own a Cadillac convertible. But for the moment, at least, you probably have more hope of flying up to the roof.

So our freedom is limited to doing those things which we can do.

But our freedom is also limited, in a funny kind of a way, by the last half of our definition. ‘I can do anything I WANT to do.’

We are not actually free when we do those things which we actually do not want to do.

Take a man who languishes in the county jail for 30 days. If he doesn't want to be there, then he isn't free. There are some men who actually want to go to jail. Particularly when the cold weather sets in, and the park benches are covered with snow.

And there are some people who freely stay in prison for other reasons. I'm sure, for example, that St. Thomas More was a free man in the tower of London, because he freely chose not to speak the words which would have turned the jailer's key, and opened the door to slavery.

So you see you are not free to do those things which you do not actually WANT to do.

What are those things?

Well, you don't want to break the law. You don't want to commit sin. You don't want to hurt your parents, or your friends, or your neighbors, or your country. And you don't want to get sick, or be made the object of ridicule.

So here is our nice, neat, simple definition of freedom. Freedom simply means that you can do anything you want to do that is not:
- physically impossible
- financially impossible
- legally prohibited
- morally wrong
- harmful to your parents
- unkind to your friends
- injurious to your neighbors
- disloyal to your country
- bad for your health
- or just plain foolish.

Now that may not sound like a whole lot of freedom to you, but it's the nearest thing to perfect freedom that you have any right to expect.”

When you give a speech you never know who is in the audience or how your words will land on them.

Twenty five years after I gave that talk I got a call from a suburban Detroit lady who told me that her brother had graduated from U. of D. High in 1969 and that she was at that commencement. She wanted to get a copy of my speech because she wanted her 16 year old daughter to read it.

She made my day.