Thursday, September 29, 2011


One of the more interesting people who spoke at the Harvard Law School last week end was Professor Richard Parker.

Bit of a rebel, he. In the midst of a solid phalanx of progressive, nay liberal, colleagues, this fellow has the kahoonas to favor outlawing desecration of the American Flag.

What? A Harvard Professor who doesn’t think burning Old Glory as a political protest ought to be protected by the First Amendment?

Indeed. He may well have had something to do with the drafting of the simple, one line constitutional amendment which gets introduced in Congress every couple of years.

The flag fuss began back in 1968 when Viet Nam War protesters started burning flags in public to express their opposition to the war. Congress passed a law against it. So did 48 of the 50 states. In 1989, by a 5-4 vote in Texas v Johnson the Supreme Court declared those laws unconstitutional.

Undaunted, Congress passed another Flag Protection Act. It, too, was found to be in violation of the First Amendment by another 5-4 vote in the high court.

Ever since then, Congress has been flirting with a constitutional amendment to authorize flag desecration laws. To send a constitutional amendment out to the states for ratification takes a two thirds vote in both houses of Congress. The House of Representatives regularly approves the amendment by two thirds.

The Senate never does. Came within one vote in 2006.

Here’s what the proposal says:

The Congress shall have power to prohibit the physical desecration of the flag of the United States.

Sounds pretty simple. Over seventy-five percent of the American people are in favor of it. And if it gets into the constitution, the Supreme Court can’t touch it. After all, the constitution can’t be unconstitutional, can it?

We’ve had flag laws in this country for years. The size and shape. The colors. How many stars and how many stripes. How it should be flown and when. Even how to fold it.

Laws prohibiting flag desecration bump up against the First Amendment’s protection of free speech only when it is done to send a message. If I burn the flag, alone in the alley behind my garage, because I’m ticked off at the post office, I’m not speaking to anybody.

But don’t do it in front of a crowd. A guy named William Thomas tried it in Dodger Stadium on April 25, 1976 and ended up making Chicago Cubs outfielder, Rick Monday, who ran up and saved the flag, an American icon.

The debate over flag desecration is classic constitutional science. The Founders got into it in 1787. Article 3 of Section 3 of the U.S. Constitution says:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

I have no doubt that burning the stars and stripes or flying a Nazi flag would have been considered giving aid and comfort to our enemies in 1943.

But what of 2011, when our enemies are an amorphous band of terrorists, some foreign, some domestic? Isn’t there a difference between politics and war? Between passionate debate and inciting to riot?

Constitutions are the ultimate form of popular law making. That’s why the constitution begins with the words, “We The People…”

Like Professor Parker, I am a populist. He says that the great division in America is not between the rich and poor or the right and the left, but between the elite and the regular folks.

I’m with him. I have faith in the intuitive wisdom of the great unwashed.

And I am a little leery of letting one vote in the United States Senate or one vote in the Supreme Court override three quarters of the American people.

Wednesday, September 28, 2011


Republicans and Democrats? Liberals and conservatives? The Left and the Right?

Fox News and MSNBC, for Heaven’s sake? Together? At the same place? In the same room?

It really happened. I was there at the Harvard University Law School along with more than 400 other folks who came from near and far to talk about the United States of America. About what’s wrong with our country. And about what can be done to fix it.

Billed as ConConCon, it was a conference designed to launch a campaign for calling a convention under Article V of the U.S. Constitution to consider amendments.

It would be a convention that could give the people of the states a way to change the way politics works in Washington D.C. It would be a convention that could talk about things and propose things that Congress will never talk about and never do.

Term limits. Balanced budgets. And the money. Money that flows like raw sewage from K Street to the Capital. Money that corrupts. Money that influences. Money that changes our nation from a democratic republic to a sinister oligarchy of career politicians, corporate fat cats, ward healing bosses, and the lobbyists who tie them all together.

I went like Marley’s ghost. Ten or fifteen years older than anyone in the room, I was writing and speaking about a convention when many of them were watching Sesame Street.

It warmed my heart to see and hear this new generation of patriots.

Larry Lessig, the brilliant, liberal, Harvard professor, leading an all star cadre of academics and activists, keynoting the conference from the left with a witty and passionate power point presentation.

Mark Meckler, the self-effacing small town lawyer from northern California, whose Lincolnesque eloquence has thrust him into the leadership of the Tea Party Patriots, making the case for his constitutents’ support of an Article V convention.

If the room was packed with citizens who came to listen and learn, to find out what can be done about the mess in Washington and see how they can lend a hand, it was also sprinkled with drum beaters who brought their own agendas, and touted their particular versions of the road to revival.

They all have high sounding names, web sites, plans and ideas. The Alliance for Democracy. Americans United to Rebuild Democracy. Public Check on Congress. The Madison Amendment. Move To Amend. WeThePeople. Rootstrikers.

A cacophony of solutions for the same laundry list of problems, looking for harmony. Trying to find the common ground. What can we do together? Where do we go from here?

Annabel Park, a co-founder of the Coffee Party said it was like being on a first date. So far, so good. Now, what’s next?

It was, indeed, a most remarkable coming together. The speeches were uniformly marked with civility and deference. While several, including the distinguished Harvard University Professor, Lawrence Tribe, were skeptical about the wisdom or efficacy of a convention, there was no debunking, no ridicule, no attempt to stifle the common effort.

Only one voice sang off key; a fanatic, radical socialist who used his minute at the microphone to hawk his Socialist Constitution and accuse the Tea Party of racism.

He got an audible groan from the crowd and an admonition from the chair.

Of course, I went to Cambridge with some flyers of my own, inviting conferees to register as delegates to Convention USA, a place on the Internet where ordinary people can work together to find the best solutions to our national dilemma.

If Harvard was a first date, maybe those good folks will want to go steady some day.

The vehicle is right there at

Wednesday, September 14, 2011


Used to be everybody had family. Mom, Dad, Grampa and Gramma. Aunts, Uncles, cousins. And, before the word ‘sibling’ came into fashion, we had brothers and sisters, too.

For a lot of folks, family is still important. My brother, Ray, has become a genealogy guru. He’s one of millions who spend their days searching for their roots, finding every branch of the family tree.

But more and more, these days, family is losing ground.

A recent news story on the telly introduced us to a woman who had discovered that the sperm donor who sired her two children has accounted for more than seventy others.

The lady was shocked and dismayed.

How dare that rascal go about randomly spawning half- brothers and half- sisters of her offspring without her approval or consent?

What, indeed, is the world coming to?

Google turned up this:

Xytex Cryo International Sperm Bank provides a diverse panel of donors that meet strict criteria before being accepted into our donor program. Use our intuitive search features along with the extensive information we offer about each donor to find the perfect match.

The web site goes on to say that pictures of their stable of studs are available in various formats, as well as transcripts of audio interviews.

After all, at $500 a pop, you don’t want to be buying a pig in a poke.

You can pick a daddy with bright blue eyes and long lashes. With a dazzling smile. Maybe a cute little dimple on the chin. Tall. Athletic. A college graduate.

Of course, the guy might be on heroin. Or his mother an alcoholic. Or his father a serial killer. But hey, dimples matter.

Some sperm donors have sired over a hundred children. Nobody really knows. The industry is basically unregulated.

Ah, yes. Free enterprise. The free market. Supply and demand. The American way.

Isn’t it wonderful? Our omniscient federal nanny tells us what kind of light bulbs we can buy and what we must do with them when they burn out, but nobody much cares where our DNA comes from or where it is going.

Back in the day, folks had to get a license from the state to make babies. It was called a marriage license. Had to have a blood test. Two witnesses and a judge or clergyman signing off. The county clerk kept all the records and called them vital statistics.

Lots of young people are going online these days looking for daddy. And half- brothers and half- sisters. Some stranger who looks like them. Some stranger who can provide a sense of belonging. A feeling of indentity.

Now there are registries on the Internet. Places where you can go to find out who you are.

Sperm donors can make as much as $1,000 a month. It’s all very discreet. The clinic is usually located in a large office building. Lots of traffic. Nobody notices a guy checking in three times a week.

Donors are screened so that the most fertile are selected. High sperm count. Good motility. High performers are in demand.

Of course, not all studs are handsome. One web site says that it is natural to feel rejected if you are not chosen. Some sperm banks won’t tell donors whether they are daddies. Don’t want to hurt anybody’s feelings. And besides, it’s none of their business.

Anyway, in America, unborn babies are chattels. They belong to their mothers, who can abort them for any reason or for no reason.

You don’t need a father. You don’t need a family. You don’t need grandparents or a name. Or a history. You’ve got a nanny in Washington, D.C. And nanny will protect you, defend you and define you.

What else do you really need? A pedigree? Nah. Pedigrees are for dogs and horses.

Thursday, September 8, 2011


On September 24 and 25, I will be attending a conference at Harvard Law School, billed as ConConCon. It’s all about organizing people to work for a national convention to propose amendments to the U.S., Constitution.

I have been saying for a long time that people of all political views should support the idea of an amendatory convention as described in Article V. At this Harvard conference, it’s really going to happen.

There will be two keynote speeches. One from the left and one from the right. The liberal is Harvard Law Professor Lawrence Lessig. The conservative is Mark Meckler, the National Coordinator of the Tea Party Patriots.

Strange bedfellows to be sure.

I’m not sure exactly what those two fellows are likely to agree upon. But it would seem that they both think it’s time to organize an Article V convention. That’s because they both think there is something wrong with the government in Washington that can’t be fixed just by electing new people.

Lessig has a web site called “fixcongressfirst.” He is obviously of the opinion that money talks too loud in the nation’s capital. He’s unhappy about the Supreme Court’s decision in the Citizens United case, and I suppose he would like to see an amendment that would reverse that decision or somehow address the problem of mendacious politicians selling their loyalty and their votes.

That’s an issue which would probably find support among Mr. Meckler’s people as well. The whole Tea Party movement was based on dissatisfaction with the Congress.

So the issue which a convention would have to address is this: what do you do about it?

Tough question.

The old saying is that all is fair in love and war. Add politics. I don’t know how you can legislate against political enthusiasm and effort. You can’t stop rich people from spending money to support their favorite candidates any more than you can stop poor folks from marching in the streets to support their candidates.

And really, who would be competent to do it? The government? The very same government that is being fought over at the ballot box? Not exactly an impartial arbiter.

Let’s face it, the money problem is a function of two things: the size of the constituencies and the size of the prize.

The Founders tried to require congressional districts of no more than 50,000 people. Today they comprise about 700,000. Hard to walk door to door. Television. Newspapers. Bulk mail. It all costs big bucks.

If we had districts of 50,000 people, the House of Representatives would need over 6,000 seats. Sounds unwieldy, but then you have to ask yourself whether 435 Congressmen and women can really represent over 300 million citizens.

A large part of the problem, of course, is the extent to which the government is involved in the economy. As long as Washington is a cornucopia, there will be competition among the greedy for the goodies.

Political contributions are usually made on a cost-benefit analysis. You give in order to get.

Maybe we need to think about a two tier system. Small districts in which the voters can elect representatives they know and trust, who in turn would send delegates to Washington when Congress is in session.

The delegates could do the committee work and the ceremonial duties, but the local representatives would vote on all actual legislation. With modern communications, they don’t need to be in the Capital Building to register their ayes and nays.

Something to think about.

Thursday, September 1, 2011


All the smart people on television are saying that the Massachusetts health care system, enacted when Mitt Romney was governor will be a mill stone around his neck in 2012.

As a matter of fact, they’re starting to call it RomneyCare and comparing it with ObamaCare.

RomneyCare, they tell us, will drive the conservative base of the Republican Party away from Romney.

For two reasons.

First because it proves that the former Bay State Governor favors socialized medicine, just like Obama, Pelosi, Reid and the rest of ‘em.

And second, because the Massachusetts plan has turned out to be enormously, prohibitively, expensive. Just like, so they say, the federal version is going to be.

It’s too bad. Too bad that the people of the United States will be distracted from the real issue.

It’s not about whether RomneyCare is better than ObamaCare. Or whether either or both systems are too expensive or too intrusive in our lives, or too restricting of the medical profession, or whether either or both systems restrict medical services for the elderly, or any of the other details where the devil is to be found.

No sir, the real issue is very simple.


Is the health of the citizens one of those things which were left to the exclusive jurisdiction of the individual states under the tenth amendment, or did the people who ratified the constitution in 1789 intend that every sneeze and cough and laceration and policy of medical insurance of every person in America is an incident of interstate commerce and subject to regulation by the government in Washington D.C.?

Mitt Romney owes no apology for the Massachusetts health care plan. Massachusetts is a liberal state. It has a liberal legislature. Romney was elected Governor of Massachusetts. He was a public servant.

If the liberal people of Massachusetts and their liberal legislators wanted to establish socialized medicine in their state, it was the proper role of their Governor to help them do it.

If the Massachusetts plan is not a successful blue print for health care that other states might want to adopt, so be it. It’s a state by state issue.

And Romney owes no apology to the Republican Party for getting himself elected Governor of the People’s Republic of Massachusetts.

On the contrary, it is one of the strongest arguments in favor of his election as President of the United States. The occupant of the oval office has to be the President of the whole nation. East to West. North to South. Liberal and Conservative.

The White House is not a place for an ideolog, a policy wonk, a guy with an agenda. It’s a place for a pragmatic Chief Executive, who can work with diverse representatives of the people in Congress, who can protect and defend the constitution of the United States, who can make sure that in its enthusiasm for doing what is popular with its constituents, the Congressional train does not jump off the constitutional track.

Framed as an issue between states’ rights and national powers, the RomneyCare v ObamaCare debate highlights and capsulizes the fundamental decision which will determine whether the United States of America will survive as a nation into the twenty-second century.

The Union of Soviet Socialist Republics was split asunder after an embarrassing, inconclusive incursion into Afghanistan. It could happen here.

The dichotomy between the French Revolution and the American Revolution remains. What is not decided by civil debate and rational compromise will be determined by force of arms and blood in the streets.

It could happen here.