Tuesday, March 31, 2015


Gerhart Mennen Williams was a colleague of mine on the Michigan Supreme Court. He often referred to an election year as “the silly season.” He certainly knew a lot about elections. Nicknamed “Soapy” because of his family’s  toiletry business, Williams was elected Governor of Michigan six times, back in the days when the term of office was two years.

Seems like these days the silly season starts earlier and earlier. The modern phrase is ‘election cycle.’ It surely goes round and round. No sooner has a new set of officeholders been sworn in than the pundits begin speculating on the next batch of candidates and campaigns.

Like everything else in America, the process of electing the President has become incredibly burdened by bureaucratic regulation. The Federal Election Commission’s 167 page book of rules mandates that anyone who runs for President must register and provide detailed reports about how much money is raised and spent, and who gave what.

Anyone who raises and/or spends more than $5,000 is required to report, and failure to do so is punished by heavy fines.

A waltz through the FEC’s web site is enlightening if not amusing. There are already more than thirty-seven candidates of the Democratic Party and twice as many Republicans. More than sixty Independents and dozens of ‘No Party’ candidates along with a bevy of independent, would-be Third Party candidates make for a total field of more than 200 wannabees.

The FEC has a simple way to separate the wheat from the chaff. They have decreed that only candidates who raise or spend more than $200,000 are regarded as ‘serious.’

In addition to the expected names like Jeb Bush, Chris Christy, Ben Carson,  Ted Cruz, and Lindsey Graham, there are some obviously synthetic monikers like President Emperor Caesar, and Sydneys Voluptuous Buttocks.

There are also a goodly number of literally anonymous folks, who are apparently serious about wanting to lead the nation, but have no realistic notion about what getting to the White House entails.

There’s a young woman in Texas who has a full time clerical job and spends every other waking hour pursuing her dream of becoming the first woman President. Her web site insists that her campaign  will accept donations from no one.

Cherunda Lynn Fox lives at 17145 Gable Street in Detroit. She has two committees, Fox for President and Friends of Fox. Both committees are headquartered at 17145 Gable Street. Ms. Fox seeks the nomination of the Republican Party. So far she hasn’t raised a dime.

If the Federal Election Commission is keeping its eye on Presidential candidates, it virtually keeps political parties under a regulatory microscope. Its ‘helpful’ 159 page booklet of do’s and don’t’s starts out with the good news that any group which raises or spends more than $1,000 must register and heed its warnings.

Despite this draconian regulatory oversight, there are more than forty political parties in the United States, in addition to the BIG TWO. There are half a dozen Socialist parties, an American Communist Party; two or three Christian Parties, two Green Parties, the American Nazi Party, and Parties dedicated to Peace, Justice, Reform, Prohibition and Marijuana.

There are parties for Workers, Families, Veterans, and  Whigs. There’s a Light Party and a Tea Party, a Justice Party and a Third Party.

Being a student and devotee of the Constitution of the United  States, I was particularly intrigued by the Constitution Party, so I poked around to learn more about it. Here is what they say:

The seven principles of the Constitution Party are: 1) Life: For all human beings, from conception to natural death; 2) Liberty: Freedom of conscience and actions for the self-governed individual; 3) Family: One husband and one wife with their children as divinely instituted; 4) Property: Each individual's right to own and steward personal property without government burden; 5) Constitution: and Bill of Rights interpreted according to the actual intent of the Founding Fathers; 6) States' Rights: Everything not specifically delegated by the Constitution to the federal government, nor prohibited by the Constitution to the states, is reserved to the states or to the people; 7) American Sovereignty: American government committed to the protection of the borders, trade, and common defense of Americans, and not entangled in foreign alliances.  

I'm inclined to learn more about those folks. Stay tuned.

Wednesday, March 11, 2015


Couple days ago I had the privilege of speaking to a group of students at  Saint Leo University who are studying Criminal Justice.

The subject was the Miranda warning; that rote recitation of rights which were the usual finale of Jack Webb’s famous Dragnet TV series.

I took the occasion to explain to the students that Judges do not pass laws; they make decisions. Wise decisions become precedents. The Latin phrase is stare decisis which means, “let the decision stand.”

Precedents are valuable because they tell us what the court did and why they did it. When another case comes along, which presents the same reasons for doing the same thing, the courts will typically apply the same rule and come to the same conclusion.

But a precedent only has value because it records what the court actually did. Later courts follow precedents when they do what the previous court did. In the Miranda case, the United States Supreme Court in effect said to the lower courts: “don’t do what we did, do what we said.”

Putting it another way,  appellate courts rule by example not by decree.

In the Miranda case, the Supreme Court reversed the conviction, saying they did it because no warning was given. That is what they did. But what they said was that their ruling was not to be a precedent. They didn’t want lower courts doing what they did.

Had the rest of the courts followed the decision in Miranda, by doing what the Supreme Court did, thousands of convicts would have been released. The Supreme Court reversed the Miranda conviction, then promptly said their decision was prospective only.

Bottom line is that the Warren Court knew darn well that the Miranda conviction didn’t violate the Constitution. If it had, then all other similar convictions were also invalid. The Warren Court was well aware that they were proclaiming a new rule of law, unrelated to the federal constitution.

That explanation prompted a vey bright student in the back of the room to pose this question, “Isn’t the Constitution supposed to be a living document?”

I sensed that she was advancing the familiar defense of an activist judiciary: Times change; the Constitution was intended to last for a long time, therefore it was intended to change with the times.

That familiar proposition is true, of course. But it doesn’t answer the question of how the constitution is supposed to be changed. George Washington made it clear: the constitution is obligatory unless and until it is changed by the explicit and authentic act of the whole people.

The pronouncement of an unelected nine member Supreme Court is not the explicit and authentic act of the whole people.

The constitution is the compact between the people and their government. It expresses the consent of the people to be governed in a certain way by leaders chosen in a defined manner. It is fair to say that a constitution deals with the who and the how of government. Legislatures decide the what.

It is inconceivable that the people of the United States have knowingly tolerated the usurpation of power that has tainted the decisions of the Supreme Court during my lifetime. The only explanation is the dumbing down of  public knowledge about our constitution.

The current court is a virtual cartoon of self aggrandizing elitism. All nine member of the court are graduates of only three law schools; Harvard, Yale and Columbia.

Think about it. There are over 200 accredited schools of law in the United States. The mathematical probability of all nine justices being educated at only three of those schools is something like 0.0000585 to one.

That august body has become a good old boy and girls club. It’s time for  change.