Wednesday, January 29, 2014


Merrily, merrily, merrily, merrily, life is but a dream.

Or so it seems to be considered by too many folks in America.

In September, 2009 I wrote a blog about Roe v Wade, and asked the folks to stay tuned. So I am overdue.

Let me begin with this startling statement from a conservative. Every woman has a natural right to abort her unborn child. I do not suggest that women have no moral obligation to protect the unborn. They do. But there is a difference between natural rights and moral obligations.

We all have the natural right to commit sin. The Creator has empowered us to do what we ought not do, what we know we should not do. It is called free will. A woman or man has the right to cut off his or her finger or toe. For any reason or for no reason at all.

To my knowledge, there never was a criminal law in the United States making it a crime for a woman to abort her unborn child. All of the criminal abortion statutes were directed toward another person causing or performing an abortion.

Thus this language:
"If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By `abortion' is meant that the life of the fetus or embryo shall be destroyed in the woman's womb or that a premature birth thereof be caused.
Roe v Wade makes a special point that the decision to abort a fetus is to be made by a woman and her doctor. The Court was not saying that a woman has a right to an abortion; it was saying that a doctor has the right to perform an abortion. Setting aside for the moment the question of whether the fetus is a human life, considering it merely as healthy tissue in the woman’s body, the question must be answered whether a licensed surgeon has the right to remove it based entirely on the choice and consent of the patient?

He couldn’t cut off a healthy toe or finger without some medical necessity. He couldn’t remove a liver or a gall bladder just because the patient wanted it done.

I ask this question of NARAL: does a woman have a constitutional right to have an abortion performed by her teen age boy friend? Or by a mid wife? Or, indeed, by anyone save a duly licensed medical doctor?

If a coat hanger wielding boy friend punctures an artery and kills a pregnant woman does the criminal abortion law still apply?

Or does NARAL concede that the constitutional right of choice only extends to choosing a licensed medical professional?

In the old movies a spiteful spouse would cause herself to have an abortion by strenuous horseback riding. She endangered herself in the process. The law of nature decrees that the life of a fetus is inextricably entwined with that of the mother.

The truth is that a pregnant woman isn’t sick. Pregnancy is not an illness to be cured. The fetus consists of healthy human tissue and its surgical removal is subject to the same standards of medical excision as any other part of a person’s body.

Separation of a fetus from its mother was always an appropriate medical procedure to save the life of the mother. Roe v Wade was a judicial amendment of the statutes regulating the medical profession to permit abortion as an elective surgery that required no therapeutic justification.

It may well be that at some time and in some places the popular culture will approve of amending the medical licensure statutes to permit elective abortions. In a republic that can happen. But there is no call for nine unelected jurists in a distant national capital to dictate morals or mores to a free people.

Tuesday, January 28, 2014


George Mason was an American patriot who participated in the 1787 convention in Philadelphia that drafted the Constitution of the United States.

But he didn’t sign it.

Mason had a premonition. He feared that the new nation would vibrate between a monarchy and a “corrupt oppressive aristocracy.”

He was not alone. Between 1787 and 1791 the entire nation was absorbed in the debate over ratification of the new charter. Fear of the abuse of centralized power was at the root of most opposition. James Madison, Alexander Hamilton and John Jay wrote detailed arguments– lawyers would call them briefs – in favor of ratification. They became known as the Federalist Papers and they made a strong case.

But it was only an argument about what the future might hold. The true believers were confident that they had designed the best plan for the future of the American people. Perhaps George Mason and Patrick Henry of Virginia, James Winthrop of Massachusetts and Melancton Smith of New York were wrong. Perhaps they were just pessimists who would not let themselves see the silver lining.

On the other hand…

It is just possible that those naysayers were sounding an alarm about what could happen, what might happen, indeed what would happen, if the people of the states became too complacent, too content, too willing to let others take the lead, make the decisions, run the country.

So here we are, 230 years later. More than 90% of the American people have lost confidence in the Congress. Our President openly talks about ruling the nation by executive fiat. Our Supreme Court blandly goes about the theological business of dictating the cultural mores of three hundred million people who are spread over 16 percent of the inhabitable land mass of planet Earth.

And where do these learned men and women, these modern day Pharisees come from? They march down the Ivy corridor that runs from Cambridge Massachusetts to Washington D.C. with short stops in New Haven, Connecticut and New York City to join the self anointed cadre of the intellectual elite, the heirs of a self perpetuating, self aggrandizing, self adulating, self promoting ruling class who see themselves as the brightest and the best, and who simply assume that everyone else in the world thinks so, too.

Let’s see. All nine Justices of the United States Supreme Court were educated at Harvard, Yale or Columbia. The President of the United States attended Columbia University and graduated from the Harvard Law School. That’s two of the three branches of our national government.

Some years ago, when I was Dean of the Thomas Cooley Law School in Lansing, Michigan, I noticed that all of the law clerks in the United States Supreme Court had graduated from one of four or five law schools. I wrote a letter to then Chief Justice Warren Berger and asked if there was any way for graduates of the other 165 law schools to be considered for those important and prestigious positions.

Berger replied that his former law clerks acted as a search committee and always provided him with able candidates for clerkships.

I wrote and suggested that there must be a better way. Then I asked the deans of all American law schools to nominate one graduating senior they felt was outstanding, and for several years we published the “National Law School Dean's List” with pictures and biographies of law graduates all across America.

The Supreme Court paid no attention. They have no need for outsiders. It’s an attitude that pervades our nation’s capital. But it is being challenged.

There is a spirit of revolt across the land. One of its provocateurs is Jimmy Wales, the Founder and Proprietor of Wikipedia. Educated by his mother and grandmother in a one room school house in Alabama, Jimmy has set about providing free access to the entire knowledge base of the human race.

More and more, people are learning that in the twenty-first Century, it's not who you know but what you know that counts. Can the Internet save the Republic?

I think so. And I certainly hope so.

Monday, January 13, 2014


I can’t resist commenting further about the TV chit chat between Michael Moore and Professor Robert Reich. A couple of things they said stuck in my craw.

One was that the wealthiest 400 people in the United States make more money than the poorest 150 million. Another was that the marginal tax rate peaked at 91% during the Eisenhower administration, which, they agreed was a time of great prosperity for the middle class. A third point was that household income in the United States has been on a downward trend for forty years.

I don’t know if they intended to infer that the prosperity was caused by the high taxes or whether they meant to say that the prosperity occurred in spite of the high taxes. In either case, it was pretty obvious that both gentlemen disapproved of the growing gap between the income of the wealthiest and the median income of the American people.

The professor was quite adamant that the goal of a good economic system ought to be traffic in money. A lot of money being made, and a lot of money being spent. The more is made and spent, the better off everybody is. That is the theory of stimulus. That is the economists’ argument in favor of entitlements, and government spending in general.

If that were true, it would follow that a government program giving every man, woman and child in the nation a fat paycheck of let’s say $10,000 per month would skyrocket the economy to an unheard of level of prosperity.

I don’t think so. In fact, I think that supermarkets would shortly be out of strawberries and lettuce and just about everything else.

Working is not just to get things for yourself. We all have the social obligation to contribute to the common welfare. In a free country, that social obligation is discharged freely and voluntarily by every person as they go about the business of seeking their own happiness.

The gap between the incomes at the top of the scale and the national median is interesting. Here’s a good example my son likes to tell:  in 1969, when, as Chief Justice of Michigan, I was able to persuade the State Officers Compensation Commission to give the Justices a raise from $35,000 to $42,000 a year, a star baseball player on the Detroit Tigers by the name of Al Kaline was paid $88,000 annually. And he didn’t even have to work in the wintertime!

Today, the Michigan Supreme Court Justices are paid $165,000 a year. Miguel Cabrera makes $21,000,000. He doesn’t have to suit up in the winter either.

My $42,000 in 1969 would calculate to $271,949 in 2012. Kaline’s $88,000 would equal $569,798 in 2012.

In a free economy, what does this tell us?

Two things, I suppose. Franchise level third basemen are hard to come by and intelligent, public spirited lawyers are a dime a dozen.

I’m sure there are many explanations. I doubt that Mr. Moore and Professor Reich would agree, but there is the fact that the institution of marriage has been on a downturn. Household income goes down when there are fewer people in the household. And the DINKs (double income, no kids) don’t have to work as hard or fight for raises as hard as I did in 1969 with a wife and six children at home.

I never envied Kaline his $88K and I don’t envy Cabrera’s 21 mil. 

The fat paychecks of ball players and stockbrokers are a function of people spending and investing their money the way they want to spend it and invest it.

Folks who make a lot of money and spend a lot of money are just priming the economic pump. Those who save money and invest it in enterprises that hire people and buy things are also priming the pump.

The amount of money a person or a corporation has is not the measure of social responsibility. Harvard University has a multi-billion dollar endowment. I don’t hear liberals complaining. The real stinkers are the folks who bury their coins in the yard. Jesus told a story about that, and he didn’t approve. The only thing worse than burying money in the yard is buying government bonds. 

I’d be in favor of taxing those rascals big time.


Sunday, January 12, 2014


He’s just a little guy, four feet eleven inches tall, but he packs a very big academic and political punch.
Robert Reich is the Chancellor’s Professor of Public Policy at the University of California at Berkeley and Senior Fellow at the Blum Center for Developing Economies. He was Secretary of Labor under President Clinton. Time magazine called him one of the10 most effective cabinet secretaries of the twentieth century. He has written thirteen books, several of which were best sellers. The founding editor of the American Prospect magazine and chairman of Common Cause, he has recently produced a motion picture entitled “Inequality for All.”
I saw him last night on TV, chatting with political activist and movie producer Michael Moore.
What intrigued me most about their discussion was their agreement on the proposition that dialogue between citizens of different political persuasion is necessary and possible, assuming everyone has a sense of humor.
I like to think I have a sense of humor, and I certainly represent a different point of view from those two fellows.
So here goes.
Professor Reich says in his blog:
That’s why it’s so important to (1) raise the minimum wage at least to its inflation-adjusted value 40 years ago — which would be well over $10 an hour, (2) extend unemployment benefits to the jobless, (3) launch a major jobs program to rebuild the nation’s crumbling infrastructure, (4) expand Medicaid to the near-poor, (5) enable low-wage workers to unionize, (6) rehire all the teachers, social workers, police, and other public service employees who were laid off in the recession, (7) exempt the first $20,000 of income from Social Security payroll taxes and make up the difference by removing the cap on income subject to the tax.
He doesn’t say it, but I think it fair to assume that the Professor advocates that all these things be done by the national government in Washington D.C.
(1) Minimum wage. Two points. The national government has no constitutional authority to legislate a nation-wide minimum wage. Supposedly, Congress can dictate a minimum wage for companies engaged in interstate commerce, but that only complicates the problem. The constitution leaves the matter of wage and price controls to the individual states, and that is exactly where it belongs. The United States of America does not have a single seamless economy. The cost of living in Mississippi is different than it is in New York. So are the prevailing wages. The people have much greater influence on state government than they do on the national government.
  (2) Expand unemployment benefits. Again, this is an economic program that should be addressed by the state legislatures, not the national Congress. No one thinks that unlimited unemployment benefits would be a good thing. Pretty obviously, unlimited benefits would disincentive potential workers and weaken the work ethic of many people. The idle poor, like the idle rich, are not likely to spend their time doing things likely to benefit the common good. And, of course, there is always the underground economy. People getting unemployment benefits can cut lawns and paint houses. With no withholding or social security taxes, they provide cheap labor, which is not likely to be affected by minimum wage laws. Has no one ever thought of paying unemployment benefits to employers who agree to take on the unemployed?
(3) Reich would restore the Rooseveltian WPA program. No need, I suppose to have a shovel ready program if the folks with the shovels aren’t particularly enthused about using them.
(4) Medicaid belongs in the states. A national mandate to expand Medicaid is not only unconstitutional, it is unwise. Maybe Medicaid should be extended in West Virginia and contracted in Wyoming. One size fits all socialism isn’t working and won’t work. And, by the way, how does the web site for RomneyCare function in Massachusetts?
(5) Low wage workers already have a constitutional right to unionize. I’m sure the professor has something else in mind. Like nationally financed community organizers?
(6) Re-hire laid off government employees. I’m all for it. The way to do it is to make all taxes paid to state and local government a credit against national taxes. Let’s stop sending money to Washington and then begging the lobby financed politicians to give it back.
(7) Nolo contendere. Although I do think folks at every level of earning should be encouraged to save for their old age.
Professor Reich seems to be a reasonable fellow, despite his preference for national socialism.
My problem is that I remember that NAZI was an acronym for national socialism 70 years ago.