Wednesday, September 30, 2015


The layman’s notion of judicial review is that the Supreme Court can “invalidate” a state law which it determines to be unconstitutional. Admittedly, this is the way newspapers report so-called ‘landmark’ decisions. 
Judicial review is not limited to the United States Supreme Court. Every court, from the lowest county traffic judge, has the same power to determine whether a state law does or does not comply with the state or federal constitution. If a court decides that a statute is unconstitutional, it is the duty of the judge to decide the case as though the statute in question does not exist.
That decision establishes the law of the case, and unless appealed, it determines finally and irrevocably the rights of the parties to the litigation. 
The decision, however, does not determine the rights of any other party. The Fifth Amendment to the United States Constitution affirms that no person shall be deprived of life, liberty or property without due process of law. Due process requires that a person be given a fair hearing before he or she can be jailed, fined or ordered to do anything by a judge. 
In Brown v Board of Education, the Supreme Court wisely overruled the case of Plessy v Ferguson and opined that the United States Constitution is color blind, ruling that the twenty black children of thirteen Topeka, Kansas parents were entitled to attend their local white public school. 
The order issued in that case affected those 20 children and only those 20 children. It was, however, clear to everyone that the Supreme Court was of the opinion that public school segregation laws were unconstitutional and that any state which would continue enforcing such laws would face the obvious fact that their actions would be challenged in court, and that the lower courts would almost certainly defer to the opinion of the United States Supreme Court, unless there was some logical and significant difference in the facts.
Applying the Brown rule in a nation of over 200 million people was not a simple task. Not only in the previously segregated Southern States, but in densely populated Northern cities, the natural tendencies of people to prefer neighborhoods having distinct racial or ethnic character fostered de facto segregation in many neighborhood public schools.
As a result, a number of new cases were filed, leading to a decision commonly referred to as Brown II. In it, the United States Supreme Court ordered a number of State Attorney Generals to submit, within a stated period of time, their plans for the desegregation of public schools “with all deliberate speed.”
Brown II resulted in a complete reversal of Brown I’s salutary finding that the Constitution is color blind. Quite the opposite, Brown II required that students, both black and white, be assigned to schools based on the color of their skin, in an effort to achieve statistical integration.
The result was a period of more than a quarter century of judicial activism in which federal judges ordered children transported by bus long distances from their homes, ordered local taxes to be assessed, ordered school bonds to be issued and ordered new school buildings constructed.
Now, more than 60 years after Brown, more than 70% of black school children still attend schools which are more than 50% black; more than 30% of black children attend schools that are 90% black and about 15% of black children attend schools that are 99% black.
Those statistics are not the result of any organized effort at nullification. They are simply the consequence of a free people in a free country making their own decisions for their own reasons.
Abraham Lincoln made it clear that the Supreme Court makes the law of the case and not the law of the land. That is not learned only in law school; it should be taught in high school civics. Article III of our Constitution vests judicial power, and only judicial power, in the nation’s courts. Courts are empowered to dispense justice on a case by case basis. They are neither established nor equipped to make laws, amend laws, repeal laws or order legislatures to change laws.
Whether a perceived landmark case like Obergefell v Hodges will result in a significant change in American culture will depend on the extent to which the people of the nation accept and act upon the Court’s opinion. If state marriage laws are changed, a cultural tsunami could well occur. If they are not changed, The Supreme Court will pursue a fool’s mission if it attempts to mandate nationwide compliance with Obergefell one case at a time.  

Sunday, September 27, 2015


September 26, 2015

Hon. Greg Stumbo
P.O. Box 1473
108 Kassidy Drive
Prestonburg, KY 41653

Dear Mr. Speaker:

My name is Thomas E. Brennan. I am a former Chief Justice of Michigan and Founder of the largest accredited college of law in the United States.

I write to alert you and your colleagues to the fact that you are confronted with a unique and historic opportunity to assert and defend the Constitutional right of the people of the Commonwealth of Kentucky to enjoy a republican form of government and to exercise the domestic sovereignty guaranteed by the Tenth Amendment to the Constitution of the United States.

The Rowan County Clerk has lately resisted the order of the United States Court for the Eastern District of Kentucky to issue marriage licenses to persons of the same sex in violation of Kentucky Revised Statutes Section 402.005.

She has done so on the mistaken claim that her personal religious beliefs transcend her sworn duty to obey the law. She has sought an amendment to the law exempting her from its rule as an accommodation to her religion.

Such an accommodation would be a departure from established precedent. There is a better way for her and Kentucky to protest the Supreme Court’s usurpation of the rule of law.

You and your colleagues can initiate a peaceful, non-violent form of civil disobedience which will reestablish the primacy of the written words of the United States Constitution.

I urge you to consider adopting an amendment to Section 402.005 of the Statutes which would require County Clerks, whenever they are under court order to issue a marriage license in violation of Section 402.005, to print on the face of the certificate of license, in bold 16 point type, a statement that the license is issued in violation of Section 402.005, upon the order of a court identified therein. Thus:


You and your colleagues are oath bound to support the Constitution of the United States. You are not oath bound to obey the dictum of the United States Supreme Court when they assume the power to amend the Constitution by imagining new interpretations never intended or considered by those who ratified the Constitution or its Amendments.

By adopting this amendment, you will resolve the current misplaced confrontation between the Clerk’s religious beliefs and the her sworn duty, and you will make, on behalf of the citizens of the Commonwealth, and indeed of the nation, a statement that we are a free people not beholden to a judicial oligarchy.


Thomas E. Brennan

Copies sent to:
Louisville Courier-Journal
Lexington Herald-Leader
Lansing State Journal
Detroit News
Detroit Free Press
Cincinnati Enquirer
Wall Street Journal
New York Times
Chicago Tribune

Saturday, September 19, 2015


I remember some years ago, in the heat of a political campaign, former Michigan Congresswoman Martha Griffiths, speaking of an opponent who was a Unitarian, famously observed, “The last time the name Jesus Christ was heard in my opponent’s church was when the janitor fell down the basement stairs.”

For some reason, that name, revered by Christians throughout the world, seems to have some palliative effect on life’s inevitable misfortunes for a great many people.

I recall my pal Mike Devine, of sainted memory, telling about an episode at Franklin Hills or Knollwood during an invitational tournament at which he was the guest of a Jewish lawyer. One of their opponents, also a gentleman of Jewish tradition, had a habit of greeting every poorly executed shot or missed putt with the expletive “Jesus Christ!.”

Mike, whose pixie-esque sense of humor permitted him a measure of candor not available to most of us, sidled up to the fellow and said, “I don’t think Jesus is going to help you very much. He’s my guy. Why don’t you say “Holy Moses?”

Phillipians 2:10 says:
…For this reason also, God highly exalted Him, and bestowed on Him the name which is above every name, so that at the name of Jesus EVERY KNEE WILL BOW, of those who are in heaven and on earth and under the earth, and that every tongue will confess that Jesus Christ is Lord, to the glory of God the Father.

Perhaps it is just a universal human trait to appeal to the divine whenever life’s daily disasters serve up a dose of disappointment or a dish of dissatisfaction.

In any case, in a world full of flippant JC’s and OMG’s, it is a rare thing to think or talk about the Man from whose birth all of our days are counted and whose simple lessons about the human condition sparked a civilization that harnessed the atom and went to the moon.

But that’s what Polly and I did tonight. Our parish is hosting a thing called ALPHA, described as a series of interactive sessions to discuss the Christian faith in an informal, fun and friendly environment. We went, had dinner, watched a video and shared amiable conversation, hearty laughter, and personal insights with two other couples at our table.

The video featured a British lawyer who told of his personal journey of faith. In a very lawyerlike way, he proved that there really was a man named Jesus Christ who really did live in Israel two thousand years ago; that he really claimed to be the Son of the Creator of the universe, and that his followers claimed that he rose from the dead, which no one has ever proved didn’t actually happen.

It was a sufficient dose of Christianity to launch a spirited discussion around our table about belief, marriage, children, grandchildren, and whether indeed the whole world is going to hell in a hand basket.

I couldn’t help but think that the two or three hundred people in that room are the vanguard of a religious remnant, clinging to a belief system scorned by the secular world around us, and watching each subsequent generation slip away from the moorings of faith that have held our generations hard to the tiller of the ship of state.

In the last analysis, religion is all about dying and death. Belief in a life hereafter has been the bulwark of western civilization. Judgment Day is the visualization of human conscience. Saint Peter at the pearly gates is the allegory of our moral compass.

Pope Francis is coming to the United States. Our President will pay him the dubious respect of seating him at table with a roomful of theological dissenters, sexual adventurers, and pontifical naysayers.

Jesus Christ washed the feet of sinners and silently suffered the spit of his tormenters. Francis will do the same. The ridicule, shame, disgrace and blood of martyrs have always been the seeds of Christianity.

Secularists may mock us, ISIS may behead us, but Jesus Christ will be with us until the end of time. Christianity will rise again. And again. And again. 


Thursday, September 17, 2015


Politics being a principal source of entertainment for people of my age, I tuned in to the Republic debates last night. There were several quite stellar performances: Christie, Rubio, Fiorina all scored points.

I was, of course, disappointed that so little attention was given to the Constitution of the United States. I did hear the Tenth Amendment mentioned once, but that was about it.

Of particular interest to me was the discussion about the minimum wage. Ben Carson made the most memorable comment on the subject. He not only favors raising the minimum wage; he would index it for inflation. In addition, he would favor a two-tiered minimum wage, with a lesser amount limited to younger workers.

Of course raising the minimum wage is rarely a plank in the Republican platform. Devotion to the free market dictates that wages are a matter of voluntary agreement between employers and employees.

Still, nobody challenged Dr. Carson, and the subject was shortly abandoned in favor of more personal bickering with Donald Trump.

Ben Carson is a good and decent man, and I am sure that his support of a higher minimum wage is motivated by genuine concern for the folks on the bottom rung of the economic ladder.

Still, I have to say that I was disappointed not to hear anyone suggest that the Constitution of the United States does not empower the federal government to mandate a minimum wage that all employers must pay to all employees throughout the land of the free and the home of the brave.

For what it is worth, I want to weigh in with this thought: a national minimum wage is not only unconstitutional, it is preposterously unreasonable and unfair.

The U. S. Census bureau reports that in 2009, the average wage earner in Idaho made $34,124; in Mississippi, $33,847; in Montana, $33,762 and in South Dakota, $33,352. That same year, the average worker in Massachusetts earned $56,267; in New York, $57,739; in Connecticut, $57,771; and in the District of Columbia, a whopping $77,483.

A package of cigarettes that costs $5.25 in Virginia or Missouri goes for $11.50 in Illinois and $12.55 in New York.

The two major political parties compete almost exclusively on what they claim they will do for ‘the economy.’ Bill Clinton famously coined the phrase, “It’s the Economy, stupid.”

Truthfully, what is really stupid is the tired and phony notion that the political class in Washington, D.C. has the authority and the mission to control or significantly influence the economic decisions of more than 300 million free people.

America has not one, but fifty different economies. We make our money in the States, we spend or save our money in the States. We build or buy our homes in the States, educate our children in the States. We shop and save and invest in the States.

Twenty-nine States have minimum wage laws that are higher than the federal minimum; fourteen have state minimums equal to the federal law, two states have lower minimums, and five states have no minimum wage at all.

That’s the way it is and that’s the way it should be in a Democratic Republic.                                       

Wednesday, September 9, 2015


Kim Davis insists she is doing the will of God. I got to thinking about that and asked myself the question, Just what does God want Kim Davis to do?

The first thing that came to mind is that God surely wants her to keep the promise she made on the day she was sworn in as County Clerk. That’s what an oath is; making a promise and asking the Creator to bear witness to its sincerity. It is a commitment of conscience. 

What did she promise? Two things. 1) To support the Constitutions of the United States of America and the Commonwealth of Kentucky, and 2) Faithfully to perform the duties of the office of County Clerk according to the best of her abilities.

As an elected County official, Ms. Davis works for a division of the Commonwealth of Kentucky. It tells her what to do, it pays her salary. Kentucky Revised Statute 402.005 requires her to issue marriage licenses only to couples consisting of one male and one female. It is her sworn duty to do so, and that means that it is her sworn duty to deny a license to same sex couples.

Wait a minute, you say. Didn’t the Supreme Court just say that the Kentucky statute and all others like it are unconstitutional? Yes, indeed. That was the opinion of five of the nine members of the Supreme Court. Acting on that opinion, the Court issued orders requiring the defendants in several cases to issue marriage licenses to the plaintiffs in those cases.

Aren’t all Americans bound to obey the Supreme Court? Are you kidding? Members of the military take an oath to obey the orders of the Commander in Chief, but nobody in the United States has ever taken an oath to obey the opinions of the Supreme Court. Federal Courts, like any court of law, have the power to issue direct orders to defendants over whom they have jurisdiction in specific cases, but they have no power to issue orders to the public at large.

An oath to support the Constitution of the United States is not a commitment to agree with every opinion rendered by the Supreme Court. Ms. Davis, like the members of the Kentucky legislature is oath bound to support the written words of the Constitution which is the Supreme Law of the Land.

The members of the Kentucky legislature didn’t think that Section 402.005 of the Revised Statutes was unconstitutional when they adopted it. They apparently don’t think so now. If the Court’s opinion in the Obergefell case hasn’t persuaded them to repeal or amend the law – the instructions they are giving to Kim Davis and all other County Clerks in the State – then those instructions still stand.

So what we have here, folks, is a difference of opinion about the meaning of the United States Constitution. It is not simply a difference of opinion between Anthony Kennedy and Kim Davis, although surely their opinions differ; it is a difference of opinion between oath bound public officials in Frankfort and other oath bound public officials Washington, D. C.

Judge Bunning can order Kim Davis to violate her oath as she understands it; he can demand that she do what her conscience forbids; he can keep her in jail until she disobeys the Kentucky laws she has sworn to administer, but neither he, nor the entire Supreme Court can force the people of Kentucky to change their definition of marriage or their honest belief in the domestic sovereignty of their Commonwealth as guaranteed and protected by the Tenth Amendment to the United States Constitution. 

Which is why I repeat my counsel to Ms. Davis: If you must issue same sex marriage licenses, print the following disclaimer on each one: