Tuesday, May 16, 2017


For those of us whose politics are rooted in history and tradition, the American Civil Liberties Union is an organization which is often at odds with our beliefs and our considered opinions on public policy.
That said, I have to confess that I was pleasantly surprised to find that the ACLU web site carries a full discussion of a 1995 position paper endorsed by a number of religious organizations, entitled The Bible in Public Schools: A First Amendment Guide.
The gist of the paper is very simply that there is no constitutional ban on teaching the bible in public schools, so long as it is taught as an academic subject with no effort to persuade or evangelize the students.
In short, it is OK to ask the students to read the Ten Commandments, even to memorize them, as long as they are not required or expected to agree with their message.
Candidly, I find it difficult to imagine a value-neutral curriculum for an elementary or secondary school. The Northwest Ordinance, which expressed the aspirations of our Founding Fathers, put it this way: “Religion, Morality and Knowledge, being necessary for good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”
The motto of Detroit Catholic Central High School, from which I graduated 70 years ago, affirmed that it taught us goodness, discipline and knowledge, a fairly straightforward approach to good government and the happiness of mankind.

Despite its approval of value neutral biblical education, the ACLU remains a vigorous opponent of the promulgation of the ten Commandments.

The United States Supreme Court seems to be conflicted on the subject. In 2005, the Court decided two cases involving public display of the Ten Commandments on the same day. In the Kentucky case of McCreary v ACLU, the Court held the display of the Ten Commandments on the grounds of two Kentucky courthouses violated the Federal Constitution. 

In the Texas case of Van Orden v Perry, the Court decided that a large display of the Ten Commandments on the grounds of the State Capital did not violate the Constitution. 

Both cases were decided by a vote of 5 to 4. Justice Breyer was the swing vote. While there were a number of dissenting and concurring opinions in those cases, the most salient difference between them was the simple fact that the Texas monument was allowed to stand for more than forty years before being challenged, while the Kentucky litigation was started as soon as the monuments were erected.  

One must wonder what goes through the mind of Justice Breyer when he sees the Ten Commandments represented on the face of the Supreme Court Building, displayed verbatim on the doors to the Courtroom and etched again on the wall behind the Bench.

The principal argument against the public display of the Ten Commandments is that they represent the moral teaching of the Jewish and Christian faiths. It seems peculiar to me that a statement condemning homicide, for example, should not be publicly displayed or taught in school simply because it was reputed to have been first articulated to Moses on tablets of stone.  

The curious thing about banning value laden teaching of the Ten Commandments in public schools is the fact that we expect our public schools to inculcate "good citizenship" in our children.

I have to ask myself whether the ACLU would disapprove of teaching the values of the Ten Commandments in a manner that would disguise the origin of their promulgation.

With apologies to Moses and his ghost writer, the Old Judge offers there ten "suggestions" to be added to elementary school

1.  Whatever power is responsible for the origin of the human species is entitled to the respect and gratitude of all people.
2.  The name of the originator of humanity should be used respectfully.
3.  There should be one day each week for people to gratefully celebrate the existence of intelligent life on Planet Earth.
4.  People should be good to their parents.
5.  Killing other people is a bad thing to do.
6.  Copulating with someone else’s spouse is undesirable conduct.
7.  Stealing things from other people is bad.
8.  People should not tell lies.
9.  Day dreaming about making love to someone else’s spouse is not a good thing to do.
10.  Being jealous of what other people have is not a good idea.

Monday, May 15, 2017


I am indebted to Barbi Aumiller and Shelly Horniman for their kind invitation to speak to you this evening.

Y’know, psychologists tell us that next to dying, the thing that many people fear the most is making a speech.

I must confess, I am not one of those people. In high school, I won all sorts of awards for public speaking. It always bolstered my self image to hear people applaud.

In a couple of weeks, I will be eighty-eight years old. I don’t get very many invitations to speak in public any more, so if I seem to be having a good time up here, it’s because I really am having a good time up here.

There is nothing an eighty-eight year old lawyer appreciates more than a good audience.

Many of you, I am sure, were in the audience when I addressed the Right to Life rally in Gaylord last year. You will remember that I predicted that we would vote for Donald Trump, but not because we liked him. Certainly, many of us didn’t like him.

But I said that we would vote for him because he had promised to appoint a Supreme Court Justice in the tradition of Antonin Scalia.

Whatever else may be said about President Trump, the fact is that he kept that promise. Neil Gorsuch is now a member of the high court, and we have cause to hope that the United States Supreme Court may one day begin to recognize the constitutional rights of the unborn.

But my friends, I have to remind you that one victory doesn’t win a war.

Realistically, we have to admit that the right of every unborn human being to complete the period of natural gestation and see the light of day, will not be protected by some sweeping edict from the United States Supreme Court.

During his confirmation hearings, Judge Gorsuch made quite a point of his respect for judicial precedent. Stare Decisis is the Latin phrase which means “let the decision stand.’’ Judges typically respect the decisions of their predecessors on the bench. It’s what gives consistency and predictability to our Common Law.

Frankly, I don’t think the Supreme Court, even with a conservative majority, will directly reverse the decision in Roe v Wade. I know you don’t want to hear me say that. You are, after all, the vanguard of the Right to Life movement. You spend your time and your money, your energy and your enthusiasm to protect and defend the lives of unborn children.

But the fact is, that the best we can hope for, and the decision most consistent with our constitution, would be for the Supreme Court to put things back the way they were before Roe v Wade was decided.

That means, of course, acknowledging the right of the 50 States to make laws restricting or prohibiting abortions, but it also means restoring the power of the State Legislatures to allow abortions, either on demand or for some specified reason.

And remember that, before Roe v Wade was decided, abortion was permitted in 20 states for various different reasons.

In short, what I see happening as Judge Gorsuch weighs in on the Supreme Court docket, will be a process of chipping away at the abortion culture which has grown up around the Court’s infamous decision in Roe v Wade, and reinstating the authority of the State Legislatures to restrict abortions; to spell out when abortions will be allowed and when they will be prohibited.

Some of you will certainly be disappointed. After all, we won the election. Our new President has given us a pro-life majority on the Court. Why won’t the five conservative Justices simply reverse Roe v Wade?

Let me see if I can explain it.

First of all, you have to understand that the Supreme Court is a collegial body. Those nine people work together, they eat together, they talk to each other every day, and they try to convince each other. That’s what Judges do.

They have lots of disagreements, but they all work at trying to persuade their colleagues and they often do change each other’s minds. Of course, they have many differences, religiously, philosophically, politically and personally.

But they do have one thing in common: They love the Court. They all want the Supreme Court to be prestigious, to be respected, to be honored by the people. If they could, they would make every decision unanimous. They know that the more nearly unanimous a decision is, the more it will be accepted and respected by the press, the broadcast media and the public at large. 

Judge Gorsuch is the new kid on the block. I suspect that he will want to be perceived as a team player; a judge who puts the Court as an institution at the top of his professional agenda.

A lot of horse trading goes on in an appellate court. I know because I have been there. Sometimes it only takes a word or a phrase in a Judge’s opinion to win or lose the vote of a colleague.

So the appointment of Neal Gorsuch is not the end of the fight for unborn life. In fact it is the beginning of a new phase in the crusade you and I have waged for so many years.   

As we gather here this evening, many people in the pro life movement are focused on Senate Bill 231 introduced in the 115th Congress by Senator Rand Paul and eight other Senators. It’s called the Life at Conception Act of 2017.

This is what it says:

To implement equal protection for the right to life of each born and preborn human person, and pursuant to the duty and authority of Congress, including Congress’ power under section 8 of article I of the Constitution of the United States to make necessary and proper laws, and Congress’ power under section 5 of the 14th Amendment to the Constitution, the Congress hereby declares that the right to life guaranteed by the Constitution is vested in each human being. Nothing in this Act shall be construed to require the prosecution of any woman for the death of her unborn child, a prohibition on in vitro fertilization, or a prohibition on use of birth control or another means of preventing fertilization.

On January 24th that bill was read twice and referred to the committee on the judiciary.

The same bill was introduced in the 114th Congress back in January of 2016. It was then known as Senate Bill number 2464. It was read twice in accordance with Senate Rules and then it was placed on the calendar. That is the last that was ever heard of it.

I suspect that is what will happen again this year. The fact that the bill has been referred to the judiciary committee suggests to me that there are a number of Senators who think the issue should be decided by judges, not senators.

A good argument can be made that it should be left to the courts. The Fifth Amendment – part of our national Bill of Rights – specifies that no person shall be deprived of life, liberty or property without due process of law.

So we already have constitutional protection of the right to life for every person. The problem is; what does the word person, as used in the Bill of Rights, mean?

Did the framers of our national charter consider a child in his or her mother’s womb to be a “person”?

Certainly their knowledge of pre natal life was only a fraction of what we know today.

So how does a conservative judge; a judge who looks to the original meaning of the words used in the Constitution; how does he or she interpret the word “person.”

I can’t answer for all conservative judges, but I can tell you what I wrote in 1971 in the case of O’Neill v Morse where an unborn child was killed in an automobile accident: The phenomenon of birth is not the beginning of life, it is merely a change in the form of life. The principal feature of that change is the fact of respiration. But the law does not regard the incidence of respiration as the sole determinative of life. Respiration can be artificially induced or mechanically supplied. Life remains.

Frankly, if I were sitting on the United States Supreme Court, I would have no trouble coming to the conclusion that the founders of our nation intended to mean “an identifiable human being” when they used the word “person.” In those days, a name, a face, a family; these were the things that answered the question “Who are you?” or “What are you?”

In short, identity is what makes a person a person, and it always has.

Since the DNA of an unborn child can now be determined, the unborn can now be identified. An unborn child in 2017 is now an identifiable human being, just as surely as a new born baby was in 1789.

That still leaves us with this problem: Does the Congress have the power and authority to tell the Court how they should interpret the Constitution?

In my personal opinion they don’t. I think the meaning of the Constitution is itself a constitutional matter and should be decided by the courts or by the people who have the power to amend the constitution.

If the Congress wants the Constitution to be interpreted in a certain way, they have the power to propose an amendment to the Constitution. That is the right way to do it.

Anyway, whether abortion is a legal or a political question doesn’t matter to most lawmakers. They know that the issue is the third rail of our culture; it is the question that divides our nation most bitterly; and the politicians don’t want to vote on it one way or the other.

It is interesting that people on the Left accuse conservatives who are skeptical about global warming of being opposed to science. On the abortion question, the shoe is on the other foot; conservatives have science in their corner.

The strides that have been made on the subject of pre natal life are truly astounding.

My granddaughter is pregnant. She has an app on her smart phone that tells her every day how her baby is developing. She isn’t due until October, but she already knows the baby is a girl.

We know so much more today about life in the womb; we hear the heart beat, we watch the formation of hands, feet and face, we even determine blood type and the baby’s DNA, a unique four digit number that stretches ad infinitum and belongs only to one specific, individual human being.

And as science has advanced, as we learn more and more about pre natal life, the fact that the unborn are human beings is more certain and undeniable.

There is, of course, a word for the killing of a human being. It’s called homicide.

The NARAL people don’t want to hear that. They don’t want to think about it. And it’s not just the pro choice activists who want to keep their heads in the sand.

The fact is that abortion has a huge constituency in America. Sixty million abortions have been performed here since 1973. That means there are millions upon millions of women who have had abortions, and millions more who have counseled women to abort; husbands, boy friends and girl friends, fathers and mothers, grandfathers and grandmothers. And there are legions of people who have profited in the abortion industry, because it is an industry. It is big, big business.

Still, the task that lies before us is the same task that has confronted Christianity for two thousand years. Somehow, we must learn to hate the sin and love the sinner.

On February 18th of this year, Norma McCovey, the woman who was the “Roe” of Roe v Wade died in a nursing home at the age of 69. Her life is a story of conversion from being the prime proponent of abortion to being a staunch defender of the right to life of the unborn.

Her story is proof positive that truth can and will overcome falsehood; that wisdom will conquer selfishness; that decency can and will survive in a society beset by false notions and twisted logic.

That’s why I have come here tonight to ask each and every one of you to stay the course. Keep up your good work. Support those in public life who are with us. And don’t be afraid to speak up, to let your friends and neighbors know where you stand.

It will be a long and difficult struggle, but it is a battle that can and must be won. Slavery was abolished in 1863 by Abraham’s Lincoln’s Emancipation Proclamation.

Still, it took more than a hundred years before Martin Luther King Jr could say: “Free at Last, Free at Last. Thank God Almighty, we are free at last.”

Indeed, the battle for civil rights continues this very day.

Our struggle for the protection of the unborn is not over by a long shot. In due time we must and we will win the minds and hearts of the vast majority of our fellow citizens.

Of course, the fact is that public opinion isn’t logical. It isn’t consistent. It is rarely well informed. It is the sum of millions of personal experiences, and countless personal preferences. It is affected by news; by real events and by unsubstantiated rumors; by pictures and speeches and motion pictures and by social media.

But public opinion is also formed by the lives and example of good and decent people in every community who respect and revere the God given treasure of human life day in and day out.

Ours is a daunting task. We know that. You and I have been in the trenches a long, long time. We know that the abortion culture is a ubiquitous, powerful enemy. But we shall not falter; we shall not fail. We will stand together for the right to life of every human being. We shall keep the faith. We shall fight the good fight … and we shall succeed.

Sunday, May 7, 2017


My kid brother, Raymond, will be 80 years old next month. A little old to be called a ‘kid’ to be sure, but the habit of a lifetime is hard to shake.

More than forty years ago, I persuaded Ray to abandon his career at the Detroit Edison Company and come to Lansing to help me establish the Thomas M. Cooley Law School.

I needed someone who knew what to do with tools. Ray undertook the job of managing our physical plant. Every nook and cranny.

Few people realize the contribution Ray Brennan has made to the revitalization of downtown Lansing. Under his careful guidance and minute attention to detail the mostly abandoned Masonic Temple was reinvented as a classroom building; the old J. C. Penny department store was converted into a magnificent law library; and a commonplace fourteen story downtown office building was re-invented as the spectacular ten story Cooley Center.

Ray retired from Cooley more than a dozen years ago, but true to the teaching of his father, he has kept himself busy. One avocation is to serve as Chairman and Secretary of a distinguished group of over fifty retired gentlemen who play golf together and call themselves the FOF. For popular consumption they translate that acronym as “Friendly Old Fellows” but Ray tells me there is a more colloquial, flatulent rendering.

Still, golf being a seasonal sport, brother Ray managed to discover and become enmeshed in an activity that knows no season: the science of genealogy, which has led him to compiling a massive database of information about people to whom he (and I) are related.

Hardly a day passes that I, and indeed all of our family, do not receive a copy of an email from Ray to a near or distant relative who is celebrating a birthday or wedding anniversary.

Ray has a million stories. Yesterday, as we watched the one hundred forty-third running of the Kentucky Derby on TV, he regaled us with the tale of a distant relative named Noah Armstrong. Born in Kingston Ontario, Armstrong migrated to Minnesota and from there to Montana in search of his fortune.

He found it in silver mining, discovering what came to be known as the Hecla mine and ultimately becoming a founder of the Hecla Consolidated Mining Company.          He did well enough to establish a large ranch he dubbed Doncaster, and to take up the avocation of horse breeding. Not one to be satisfied with half measures, Armstrong constructed a massive, round, three story horse barn. It has been described as resembling a wedding cake. Boasting an indoor race track, the building is now listed on the national registry of historic places.

More recently, you can find Armstrong’s barn on the Internet, where it is advertised as the Round Barn at Twin Bridges, a popular site for wedding receptions. 

But back in the day of its use as an equestrian residence Armstrong had a mare named Interpose who was pregnant by a Hider Ali, a thoroughbred stud.

Armstrong was traveling in Spokane, Washington in 1886, when he received the news that Interpose was foaling. He promptly and whimsically dubbed his new stallion “Spokane.”

Three years later, in 1889, the year in which Montana was admitted to the Union, Montana foaled and bred Spokane won the Kentucky Derby. His time was 2:23.50, a record for the mile and a half distance, which still stands today. It will never be eclipsed because the Kentucky Derby was changed to a mile and a quarter in 1896. Spokane remains the only Montana horse to win the “most exciting two minutes in sports.”

Spokane went off at 16.4 to one and paid $34 on a two dollar bet. One bettor did particularly well, as he wagered $5,000 on the race. He collected $170,000. His name was Frank James. And, yes, he was the brother of Jesse James, the infamous nineteenth century American bandit.

Fascinating how the tentacles of genealogy can connect us with people, places and events. Brother Ray has learned much and made many friends through his exploration, and he has enriched all of us with his discoveries. In many ways, the pay off has been as bountiful for Ray Brennan as it was for Frank James.

Thursday, May 4, 2017


In 1965, about a week after our youngest daughter was born, Polly and I moved our burgeoning clan to a beautiful six bedroom home in the Sherwood Forest section of Detroit.

I was a Circuit Court Judge at the time, and by no stretch of financial legerdemain was I qualified to make such a purchase, but with the aid of cousin Leo at the Savings and Loan and Gertrude Harwin, who desperately wanted to sell the property, we swung the deal.

It was a lovely home, and perfect for a family of our size. Among its many benefits was the fact that our next door neighbor was a man named Arthur J. Lacy.

He was known by all as Judge Lacy, despite the fact that his judicial career  as the first and only Judge of the Wayne County Court of Domestic Relations, lasted only eight months until the Supreme Court declared it unconstitutional in 1913.

The Judge was a kindly, pleasant man, born in 1876. By 1965, when I met him, he was well into a ninety-nine year lifespan. As a young man, he had been elected Mayor of Clare, and subsequently was the Democratic nominee for Governor in 1934.

Despite his loyalty to the Democratic Party, the Judge took great exception to Franklin D. Roosevelt’s third and fourth terms. In fact, he purchased radio time to broadcast speeches opposing FDR in 1940 and 1944.

To me, the old Judge was a father figure. As a young Circuit Judge, I had a way of generating controversy which spilled into the newspapers. I found the Judge to be a steady, wise and sympathetic counselor. His comment: “There is nothing older than yesterday’s newspaper.”

In his last years, the Judge donated his personal papers to the Bentley Historical Collection at the University of Michigan. The index reveals his broad circle of friends and acquaintances as well as his life long interest in public affairs.

I am specially in his debt. On the upper shelf of my cozy new East Lansing den there is a set of twelve volumes entitled simply, “America.” Published in 1925, by the Americanization Department of the Veterans of Foreign Wars, the books are a compendium of letters, speeches and essays, described as a library of original sources. It was a gift from Judge Lacy shortly before he moved to a retirement home.

A bonanza to a history buff, every page of those books yields insights into the history of our nation that can’t be found elsewhere, even with the help of Google.

For example: this evening, out of curiosity, I pulled down the volume that covers 1783 to 1803 and opened it to a page about the Northwest Ordinance.

Few Americans have ever read the Northwest Ordinance, and fewer still appreciate its importance in the history of our nation. Adopted by the Continental Congress during the fading days of the Articles of Confederation, the Northwest Ordinance was a blueprint for the expansion of the United States from a timorous thread of thirteen coastal colonies to the bold nation that reaches from sea to shining sea. 

It established our use of the common law, protected the right to own private property, abolished slavery in the Midwest, and provided for the creation of independent states chartered and governed with the consent of the people.

Along with the Declaration of Independence and the United States Constitution, the Northwest Ordinance deserves to be enshrined as a founding document of our nation.

But interestingly, it was not the work of Thomas Jefferson, Alexander Hamilton or James Madison. Or any of the other Founding Fathers who are celebrated throughout the land by the naming of cities, streets, schools and Universities.

No indeed, the Northwest Ordinance was written by a lawyer from Massachusetts named Nathan Dane. Perhaps you never heard of him. I hadn’t until I opened Judge Lacy’s book.

There I discover that Mr. Dane not only wrote the Northwest Ordinance, he also wrote an eight volume treatise called “A General Abridgement of American Law” which became the sine qua non of reference for lawyers throughout the country. It was so successful that Dane donated the profits to establish a law school at Harvard University.