With three lawyer sons, and two lawyers sons-in-law, my darling wife has always banned dinner table conversation about the law at family gatherings. I confess that I greatly enjoy those occasions when her instructions are ignored. I always come away from family discussions both better informed and impressed with the level of discourse.
That said, I am pleased to report that our oldest son, Retired District Court Judge Thomas E. Brennan, Jr., has chimed into the Article V blogs with this email:
"Boy, I'm getting a kick out of your last three entries as you answer the challenge of both the conservative business lawyer who reveres the constitution much like the Ten Commandments (Bill) and the liberal academician who treats the constitution as a mere reference point for basic tenets to serve as guidelines (John).
I remember a few years back, while still on the bench, I attended a state-wide judicial conference featuring two renowned Ivy-league professors who debated the issue of judicial activism versus judicial restraint. I asked the perhaps naive question, "Could we not put an end to this constant discussion by simply calling for and advocating constitutional conventions when necessary to keep up with the changing times?" The professors looked dumbfounded at first, before politely answering that, indeed, that could be a solution ... but not likely to ever happen.
At the break, then Michigan Chief Justice Clifford Taylor, a Federalist Society conservative, rudely confronted me with this scold: "That's the dumbest idea you could ever utter! You want to put the future of this country in the hands of a bunch of crazy people!"
His words were as arrogant as the tone in his voice. It is the elitism of our current government officials who feel only they know what is best for the masses that stems any tide for proper reform or affirmation of our constitutional principles.
Besides, maybe the former Chief Justice forgot that the men who gathered in Philadelphia 230 years ago were seen by many of their peers as "crazy" when really they were courageous and determined!"
The shrill outburst by Justice Taylor echoes the reaction of many to the idea of an Article V convention. It grieves me to think that Americans regard their constitutional right to propose amendments so trivially.
Tuesday, February 24, 2009
Friday, February 20, 2009
AN ACADEMIC PERSPECTIVE
This morning, at the fitnerss center, a friend told me he enjoyed and agreed with my son Bill's comments about the constitution. A nice way of saying he doesn't think much of my opinion.
I'm used to being a dissenter. Several years as the lone conservative on the Michigan Supreme Court taught me that it is better to be right than agreed with.
Anyway, I'm delighted to report that another of my lawyer sons has weighed in. Professor John S. Brennan contributes these cogent thoughts:
"Can't say that I agree with everything, but there are some pretty interesting points. I'm thinking about Great Britain, which has a titular monarchy. Everyone knows it is toothless, but it apparently serves an important function. The power it has looks real, but is superficial, yet the role it plays is rooted in its history and connects its people to its past. Maybe our constitution is a lot like the British monarchy. It doesn't play the same role it did 200+ years ago, but its evolution allows the nation to function in a different world. Nevertheless, its history connects us with ideals of the past that we still value. Changing it would be like Britain getting rid of the Queen --- it's already been done, but it's unthinkable."
No doubt that statement would garner an overwhelming "Amen" from law faculties across our great land. They vehemently oppose an Article V convention to propose amendments, while they strenuosly insist that the constitution is "evolving". Amending the constitution by the concurrence of the people of three fourths of the American states is seen as too risky, while changes made by five out of nine justices deciding a case brought by a single litigant are seen as beneficial or unremarkable.
For too many in academia the constitution is a "living" document which contains broad, adaptable principles meant to guide us and all future generations. The solutions to all problems are supposed to be somehow hidden in the ancient rhetoric of the founding fathers.
Thomas Jefferson didn't think so. In a letter to Thomas Kercheval dated July 11, 1816 he wrote:
"Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, I labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book reading: and this they would say for themselves were they to rise from the dead."
Of course, the living constitution error is not the sole property of either party or either side of the philosophic discourse. Consider this: the constitution requires the President of the United States to be at least 35 years of age.
The life expectancy of a male in 1789 was about 44 years. People married at 18 or 19.
If we consider the constitution merely as an historical statement of principles, which can be applied to the changing circumstance of modern times, it would follow that the 35 year old requirement in the constitution translates to 49 years old in 2008 when life expectancy is more than 72 years.
By that logic, Barack Obama was not old enough to be elected to the White House.
But if it were to be claimed that Mr. Obama was disqualified, who would argue for it and who would oppose it?
No doubt the liberals, who typically favor the evolution of a living constitution, would insist on adhering to the expressed words of the 1789 document, while the conservatives, who usually come down of the side of original intent, might just support constitutional evolution.
My point is simply this: in a government of men rather than of laws, partisanship trumps reason; logic dissipates in the face of advantage. Instead of being the supreme law of the land, the constitution becomes a semantic battleground on which contesting political interests hack at each other.
The renowned nineteenth century jurist, Thomas M. Cooley, stated the rule of construction clearly and forcefully:
"A cardinal rule when dealing with written instruments is that they shall receive an unvarying interpretation, and that their practical construction is to be uniform. A constitution is not to be made to mean one thing at one time, and another at some subseqent time when the circumstances may have so changed as perhaps to make a different rule in the case seem desireable."
Cooley insisted that constitutions do not evolve through judicial decisions over time like the common law, and he concluded that judges who attempted to do so "... would be justly chargeable with reckless disregard of official oath and public duty."
The emails from Bill and John reflect the general state of public opinion on the matter of an Article V convention. The corporate lawyer and the law professor, the minions of both left and right, all seem to agree that the American people are not to be trusted with choosing delegates to an amendatory convention.
The founding fathers would weep. Pity.
I'm used to being a dissenter. Several years as the lone conservative on the Michigan Supreme Court taught me that it is better to be right than agreed with.
Anyway, I'm delighted to report that another of my lawyer sons has weighed in. Professor John S. Brennan contributes these cogent thoughts:
"Can't say that I agree with everything, but there are some pretty interesting points. I'm thinking about Great Britain, which has a titular monarchy. Everyone knows it is toothless, but it apparently serves an important function. The power it has looks real, but is superficial, yet the role it plays is rooted in its history and connects its people to its past. Maybe our constitution is a lot like the British monarchy. It doesn't play the same role it did 200+ years ago, but its evolution allows the nation to function in a different world. Nevertheless, its history connects us with ideals of the past that we still value. Changing it would be like Britain getting rid of the Queen --- it's already been done, but it's unthinkable."
No doubt that statement would garner an overwhelming "Amen" from law faculties across our great land. They vehemently oppose an Article V convention to propose amendments, while they strenuosly insist that the constitution is "evolving". Amending the constitution by the concurrence of the people of three fourths of the American states is seen as too risky, while changes made by five out of nine justices deciding a case brought by a single litigant are seen as beneficial or unremarkable.
For too many in academia the constitution is a "living" document which contains broad, adaptable principles meant to guide us and all future generations. The solutions to all problems are supposed to be somehow hidden in the ancient rhetoric of the founding fathers.
Thomas Jefferson didn't think so. In a letter to Thomas Kercheval dated July 11, 1816 he wrote:
"Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, I labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book reading: and this they would say for themselves were they to rise from the dead."
Of course, the living constitution error is not the sole property of either party or either side of the philosophic discourse. Consider this: the constitution requires the President of the United States to be at least 35 years of age.
The life expectancy of a male in 1789 was about 44 years. People married at 18 or 19.
If we consider the constitution merely as an historical statement of principles, which can be applied to the changing circumstance of modern times, it would follow that the 35 year old requirement in the constitution translates to 49 years old in 2008 when life expectancy is more than 72 years.
By that logic, Barack Obama was not old enough to be elected to the White House.
But if it were to be claimed that Mr. Obama was disqualified, who would argue for it and who would oppose it?
No doubt the liberals, who typically favor the evolution of a living constitution, would insist on adhering to the expressed words of the 1789 document, while the conservatives, who usually come down of the side of original intent, might just support constitutional evolution.
My point is simply this: in a government of men rather than of laws, partisanship trumps reason; logic dissipates in the face of advantage. Instead of being the supreme law of the land, the constitution becomes a semantic battleground on which contesting political interests hack at each other.
The renowned nineteenth century jurist, Thomas M. Cooley, stated the rule of construction clearly and forcefully:
"A cardinal rule when dealing with written instruments is that they shall receive an unvarying interpretation, and that their practical construction is to be uniform. A constitution is not to be made to mean one thing at one time, and another at some subseqent time when the circumstances may have so changed as perhaps to make a different rule in the case seem desireable."
Cooley insisted that constitutions do not evolve through judicial decisions over time like the common law, and he concluded that judges who attempted to do so "... would be justly chargeable with reckless disregard of official oath and public duty."
The emails from Bill and John reflect the general state of public opinion on the matter of an Article V convention. The corporate lawyer and the law professor, the minions of both left and right, all seem to agree that the American people are not to be trusted with choosing delegates to an amendatory convention.
The founding fathers would weep. Pity.
Thursday, February 19, 2009
OUR SACRED CONSTITUTION
My recent musings about the rise of socialism in America prompted a thoughtful, if somewhat emotional response from the General Counsel of the Bissel Corporation, who just happens to be my son, Bill.
His points are so well expressed and so typical of the views of patriotic citizens, that I thought it well to repeat some of them here:
"It's not just the words that mean something to us all; it's the credibility of their writers, [Washington, Franklin, Jefferson, and Adams]the sacrifice by all those who have fought for the ideals they held, and the respect our people have for that document and its history. New and better words, if that were even possible, could not replace what the Constitution has come to mean to the people of this country.
Bottom line: let's not toss our Constitution; let's just do a better job of living by it."
Most Americans believe as Bill does that the Constitution somehow restrains the actions of elected officials. It doesn't. It's supposed to. It was intended to. It declares itself to be the supreme law of the land. Above the Congress. Beyond the President. Over the Supreme Court.
But is that the fact? At the Harvard Law School and elsewhere in academic circles, they teach that the Constitution is what the Supreme Court says it is.
Does anyone in Ameica really believe that we have a federal government of limited delegated powers, or that the several states are sovereign in all matters not expressly consigned to federal authority?
I learned in law school sixty years ago that the states have "police power" which meant that it was left to the states to make laws defining crimes and providing for their punishment. It was the province of state governemnt to legislate all the do's and don'ts affecting the health, welfare, and morals of their citizens.
Does anyone in America today doubt that the federal government has assumed the authority to dictate every facet of our lives, to control our economy, to decide who gets what?
Nearly two hundred years ago the French historian, Alex de Tocqueville, in his seminal work, "Democracy in America" warned that our federal government might become a vast tutelary authority which would dictate all the minutia of life. It was his view that people who try to vote themselves rich end up voting themselves into slavery.
I do not share the widespread skepticism about constitutional reform. Our experience in Michigan in 1963 convinced me that delegates to a convention are more inclned to think long term than congressmen and senators. Only a convention would propose term limits for the Congress. Only a convention could draft a balanced budget amendment with teeth in it. Only a convention can reign in a supreme court that presumes to treat the constitution as its intra office memorandum.
But most of all, I'm grateful for Bill's email because Article V of the Constitution is still there, it was written by the same patriots he reveres, and it deserves thoughtful, thorough, reasoned debate and discussion.
His points are so well expressed and so typical of the views of patriotic citizens, that I thought it well to repeat some of them here:
"It's not just the words that mean something to us all; it's the credibility of their writers, [Washington, Franklin, Jefferson, and Adams]the sacrifice by all those who have fought for the ideals they held, and the respect our people have for that document and its history. New and better words, if that were even possible, could not replace what the Constitution has come to mean to the people of this country.
Bottom line: let's not toss our Constitution; let's just do a better job of living by it."
Most Americans believe as Bill does that the Constitution somehow restrains the actions of elected officials. It doesn't. It's supposed to. It was intended to. It declares itself to be the supreme law of the land. Above the Congress. Beyond the President. Over the Supreme Court.
But is that the fact? At the Harvard Law School and elsewhere in academic circles, they teach that the Constitution is what the Supreme Court says it is.
Does anyone in Ameica really believe that we have a federal government of limited delegated powers, or that the several states are sovereign in all matters not expressly consigned to federal authority?
I learned in law school sixty years ago that the states have "police power" which meant that it was left to the states to make laws defining crimes and providing for their punishment. It was the province of state governemnt to legislate all the do's and don'ts affecting the health, welfare, and morals of their citizens.
Does anyone in America today doubt that the federal government has assumed the authority to dictate every facet of our lives, to control our economy, to decide who gets what?
Nearly two hundred years ago the French historian, Alex de Tocqueville, in his seminal work, "Democracy in America" warned that our federal government might become a vast tutelary authority which would dictate all the minutia of life. It was his view that people who try to vote themselves rich end up voting themselves into slavery.
I do not share the widespread skepticism about constitutional reform. Our experience in Michigan in 1963 convinced me that delegates to a convention are more inclned to think long term than congressmen and senators. Only a convention would propose term limits for the Congress. Only a convention could draft a balanced budget amendment with teeth in it. Only a convention can reign in a supreme court that presumes to treat the constitution as its intra office memorandum.
But most of all, I'm grateful for Bill's email because Article V of the Constitution is still there, it was written by the same patriots he reveres, and it deserves thoughtful, thorough, reasoned debate and discussion.
Tuesday, February 17, 2009
USA or SUA?
The cover of the February 16th issue of NEWSWEEK magazine carries the chilling message that socialism has arrived in America. The extensive cover story effectively argues that the United States of America has become the Socialist Union of America.
Goodby USA. Hello SUA.
NEWSWEEK points out that the election of Barack Obama was not the beginning of the transformation from USA to SUA. It was the final step, the confirmation of a trend that began 77 years ago with the election of Franklin Delano Roosevelt and has crept quietly and inexorably upon us ever since.
It has not been the sole province of Democrats or Republicans. In fact, as NEWSWEEK so accurately notes, the 700 billion dollar Bush bailout in the summer of 2008 effectively nationalized the mortgage banking industry. It was a bipartisan capitulation to government management of the economy.
I have long been a proponent of calling a convention to propose amendments as provided in Article V of the constitution. Thirty years ago, I wrote a law review article entitled "Return to Philadelphia." I still think it's the right thing to do.
On that subject however, I have been mostly a voice crying in the wilderness. Liberals and conservatives have both opposed the idea, curiously enough because they both fear that the other side would dominate a convention and propose amendments they regard as anathama.
The Friends of an Article V Convention (FOAVC) of which I am a founding member, takes great pains to distinguish between a convention to propose amendments and a full fledged constitutional convention, summoned to rewrite the supreme law of the land.
Opponents of a convention insist that there is no way to limit the delegates; once they are convened and organized, they might do just as the Philadelphia convention did, and scrap everything in favor of a new document. Which is why strange bedfellows like the John Birch Society and the ACLU unite in opposition to a convention.
So be it. Perhaps the time for pussyfooting is over. Maybe its the season for all Americans of good will and common sense to say, "Hey, let's put the cards on the table and battle our philosophies of government to the finish. Let's see what kind of a government the people really want in the twenty first century. And let's put it down on paper in clear, unambiguous English language. Or some other language, if that's what the people want.
The preamble to the Philadelphia constitution defines its purpose this way:
"We the people of the United States of America, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare and assure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution"
Would the current citizenry prefer something like this:
"We the people of the Socialist Union of America, in order to form a sovereign central government, establish equality, insure a prosperous economy, provide for the abolition of war, promote the physical, environmental, and economic welfare of every person, and assure the blessings of freedom and privacy to ourselves and our posterity, do ordain and establish this constitution"?
I like the old version. But I would rather have a whole new written constitution than a nation which simply ignores its fundamental charter and allows itself to be ruled by politicians and media pundits.
Goodby USA. Hello SUA.
NEWSWEEK points out that the election of Barack Obama was not the beginning of the transformation from USA to SUA. It was the final step, the confirmation of a trend that began 77 years ago with the election of Franklin Delano Roosevelt and has crept quietly and inexorably upon us ever since.
It has not been the sole province of Democrats or Republicans. In fact, as NEWSWEEK so accurately notes, the 700 billion dollar Bush bailout in the summer of 2008 effectively nationalized the mortgage banking industry. It was a bipartisan capitulation to government management of the economy.
I have long been a proponent of calling a convention to propose amendments as provided in Article V of the constitution. Thirty years ago, I wrote a law review article entitled "Return to Philadelphia." I still think it's the right thing to do.
On that subject however, I have been mostly a voice crying in the wilderness. Liberals and conservatives have both opposed the idea, curiously enough because they both fear that the other side would dominate a convention and propose amendments they regard as anathama.
The Friends of an Article V Convention (FOAVC) of which I am a founding member, takes great pains to distinguish between a convention to propose amendments and a full fledged constitutional convention, summoned to rewrite the supreme law of the land.
Opponents of a convention insist that there is no way to limit the delegates; once they are convened and organized, they might do just as the Philadelphia convention did, and scrap everything in favor of a new document. Which is why strange bedfellows like the John Birch Society and the ACLU unite in opposition to a convention.
So be it. Perhaps the time for pussyfooting is over. Maybe its the season for all Americans of good will and common sense to say, "Hey, let's put the cards on the table and battle our philosophies of government to the finish. Let's see what kind of a government the people really want in the twenty first century. And let's put it down on paper in clear, unambiguous English language. Or some other language, if that's what the people want.
The preamble to the Philadelphia constitution defines its purpose this way:
"We the people of the United States of America, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare and assure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution"
Would the current citizenry prefer something like this:
"We the people of the Socialist Union of America, in order to form a sovereign central government, establish equality, insure a prosperous economy, provide for the abolition of war, promote the physical, environmental, and economic welfare of every person, and assure the blessings of freedom and privacy to ourselves and our posterity, do ordain and establish this constitution"?
I like the old version. But I would rather have a whole new written constitution than a nation which simply ignores its fundamental charter and allows itself to be ruled by politicians and media pundits.
Sunday, February 8, 2009
STIMULUS WE CAN BELIEVE IN
The other day, the St. Pete Times invited its readers to weigh in with their ideas on how to stimulate the economy.
What a novel idea! Asking the citizens and taxpayers what they think ought to be done! Does the St. Pete Times really think that just maybe all truth and knowledge may not reside in Washington D.C.?
I confess that the invitation intrigued me. I like to work Sudoku puzzles and play Spider Solitaire on my computer. Solving problems is my thing. So here's my idea:
Congress should provide a tax deduction for all money paid for services rendered.
Think about it. There must be trillions of dollars paid out every year in America for all kinds of services. Dollars paid out by homeowners, and citizens of every stripe for personal services that are not rendered to businesses.
Hire a man to paint your house. You pay him with dollars on which you have already paid taxes. He will have to pay taxes on what you pay him. How many times should the government tax that money? If he is painting your store or your office, his bill is tax deductible. But if he paints your house, it isn't.
Do we want to stimulate employment? Making service invoices tax deductible will encourage Americans to hire people. Not only that. It would slice into the underground economy. How many tradesmen don't declare all their gross receipts? What about undocumented aliens? Most folks don't ask to see a green card from the fellow who cuts the grass or trims the bushes.
I wouldn't make it mandatory for people to give tradesmen a 1099. But if you want to take the tax deduction, you'd have to do it.
Of course we all know deserving men and women who live in the underground economy. They get paid in cash. They don't report all their income. They don't pay self employment taxes. They just stay under the radar and try to make ends meet.
The Federal government should have a threshold amount that a person can earn from self employment before tax liability -- either income tax or self employment tax -- is imposed. We all know that small business is where most jobs are created.
People who go into business for themselves should be encouraged. Making them pay taxes, even making them file complicated tax returns does just the opposite. The cleaning lady who grosses less than $20,000 a year shouldn't have to pay taxes. Instead, the feds should credit her with a contribution to the social security system, so that she will have some modest retirement benefit when the time comes.
Current law requires anyone making more than $400 a year from self employment to pay self employment taxes of 7.65%. The cleaning lady who makes $20,000 would have to pay $1,530 in self employment taxes. No wonder most of them are driven underground.
Is that how our Congress plans to stimulate the economy and create jobs? There has to be a better way.
What a novel idea! Asking the citizens and taxpayers what they think ought to be done! Does the St. Pete Times really think that just maybe all truth and knowledge may not reside in Washington D.C.?
I confess that the invitation intrigued me. I like to work Sudoku puzzles and play Spider Solitaire on my computer. Solving problems is my thing. So here's my idea:
Congress should provide a tax deduction for all money paid for services rendered.
Think about it. There must be trillions of dollars paid out every year in America for all kinds of services. Dollars paid out by homeowners, and citizens of every stripe for personal services that are not rendered to businesses.
Hire a man to paint your house. You pay him with dollars on which you have already paid taxes. He will have to pay taxes on what you pay him. How many times should the government tax that money? If he is painting your store or your office, his bill is tax deductible. But if he paints your house, it isn't.
Do we want to stimulate employment? Making service invoices tax deductible will encourage Americans to hire people. Not only that. It would slice into the underground economy. How many tradesmen don't declare all their gross receipts? What about undocumented aliens? Most folks don't ask to see a green card from the fellow who cuts the grass or trims the bushes.
I wouldn't make it mandatory for people to give tradesmen a 1099. But if you want to take the tax deduction, you'd have to do it.
Of course we all know deserving men and women who live in the underground economy. They get paid in cash. They don't report all their income. They don't pay self employment taxes. They just stay under the radar and try to make ends meet.
The Federal government should have a threshold amount that a person can earn from self employment before tax liability -- either income tax or self employment tax -- is imposed. We all know that small business is where most jobs are created.
People who go into business for themselves should be encouraged. Making them pay taxes, even making them file complicated tax returns does just the opposite. The cleaning lady who grosses less than $20,000 a year shouldn't have to pay taxes. Instead, the feds should credit her with a contribution to the social security system, so that she will have some modest retirement benefit when the time comes.
Current law requires anyone making more than $400 a year from self employment to pay self employment taxes of 7.65%. The cleaning lady who makes $20,000 would have to pay $1,530 in self employment taxes. No wonder most of them are driven underground.
Is that how our Congress plans to stimulate the economy and create jobs? There has to be a better way.
Wednesday, January 28, 2009
ROBERT BORK
On February 12, 1992, it was my privilege to introduce Judge Robert Bork to a gathering at Michigan State University. I stand by what I said.
***
REMARKS BY THOMAS E. BRENNAN
THE PEOPLE OF MICHIGAN OWE A DEBT OF GRATITUDE TO THE CITIZENS INSURANCE COMPANY FOR THEIR INSPIRING EXAMPLE OF RESPONSIBLE CORPORATE CITIZENSHIP. THESE SYMPOSIA, FOCUSING AS THEY DO ON VISIONS FOR THE 21ST CENTURY, PROVIDE OCCASIONS FOR ALL OF US TO PUT ASIDE, FOR A FEW PRECIOUS HOURS, THE NITTY AND THE GRITTY OF MAKING A LIVING, AND TURN OUR ATTENTION TO THE BIG PICTURE.
I AM ESPECIALLY GRATEFUL TO JERRY FAVERMAN AND PUBLIC SECTOR CONSULTANTS FOR THE HONOR THEY HAVE BESTOWED UPON ME HERE THIS AFTERNOON.
FOR A LAWYER, A JUDGE AND SOMETIME LEGAL AUTHOR AND EDUCATOR, THERE COULD BE NO MORE DELICIOUS ASSIGNMENT THAN TO PRESENT THE HONORABLE ROBERT HERON BORK TO AN AUDIENCE SUCH AS IS ASSEMBLED IN THIS ROOM.
CERTAINLY OUR SPEAKER TODAY IS RECOGNIZED AS THE QUINTESSENTIAL LEGAL SCHOLAR OF OUR TIME. HIS 19 YEARS ON THE FACULTY OF THE YALE LAW SCHOOL, DURING WHICH TIME HE HELD THE CHANCELLOR KENT AND ALEXANDER BICKEL CHAIRS AND HIS CURRENT APPOINTMENT AS JOHN M. OLIN SCHOLAR IN LEGAL STUDIES AT THE AMERICAN ENTERPRISE INSTITUTE, WOULD BE ENOUGH TO QUALIFY HIM FOR THAT APPELLATION, EVEN WITHOUT THE MYRIAD HONORS AND AWARDS HE HAS RECEIVED OR THE PLETHORA OF COMMITTEES AND BOARDS UPON WHICH HE HAS SERVED.
LET ME GIVE YOU A PASSING GLIMPSE OF A CURRICULUM VITAE THAT SPARKLES WITH ACADEMIC ACHIEVEMENT AND LEADERSHIP:
- MEMBER OF A PRESIDENTIAL TASK FORCE ON ANTI-TRUST;
- CONSULTANT TO A CABINET COMMITTEE ON EDUCATION;
- TRUSTEE OF THE WOODROW WILSON INTERNATIONAL CENTER FOR SCHOLARS;
- FELLOW OF THE AMERICAN ACADEMY OF ARTS AND SCIENCES;
- MEMBER OF THE BOARD OF GOVERNORS OF THE SMITH RICHARDSON FOUNDATION;
- OF THE LEGAL ADVISORY BOARD OF THE NATIONAL LEGAL CENTER FOR THE PUBLIC INTEREST;
- THE BOARD OF DIRECTORS OF THE INSTITUTE FOR EDUCATIONAL AFFAIRS;
- THE DEVELOPMENT BOARD OF THE FEDERALIST SOCIETY FOR LAW AND PUBLIC POLICY STUDIES;
- THE ADVISORY BOARD OF THE CENTER FOR CHRISTIANITY AND THE COMMON GOOD.
THERE IS MORE.
HE HOLDS THE SHELBY CULLOM DAVIS AWARD FROM THE ETHICS AND PUBLIC POLICY CENTER, AND HONORARY DEGREES FROM CREIGHTON UNIVERSITY, WILKES-BARRE COLLEGE, NOTRE DAME LAW SCHOOL, BROOKLYN LAW SCHOOL, DE SALES SCHOOL OF DIVINITY, AND ADELPHI UNIVERSITY.
IN 1984 JUDGE BORK RECEIVED THE PRESTIGIOUS FRANCIS BOYER AWARD FROM THE AMERICAN ENTERPRISE INSTITUTE FOR PUBLIC POLICY RESEARCH. I WAS PRIVILEGED TO BE IN THE AUDIENCE ON THAT OCCASION TO HEAR HIM DELIVER HIS MAGNIFICENT BOYER LECTURE.
IF LEGAL SCHOLARSHIP WERE JUDGE BORK'S ONLY ACCOMPLISHMENT, HIS PLACE IN AMERICAN LEGAL AND EDUCATIONAL ANNALS WOULD BE SECURE.
BUT OF COURSE, THERE IS MORE. MUCH, MUCH MORE.
WE SOMETIMES HEAR IT SAID THAT THOSE WHO CAN DO, DO; WHILE THOSE WHO CANNOT DO, TEACH.
OUR DISTINGUISHED GUEST SPEAKER HAS SUCCEEDED BOTH IN AND OUT OF THE ACADEMY.
HE SERVED IN THE UNITED STATES MARINE CORPS DURING WORLD WAR II, AND ON HIS DISCHARGE EARNED A LAW DEGREE AT THE UNIVERSITY OF CHICAGO.
ON GRADUATING, HE WAS RECALLED TO ACTIVE DUTY WITH THE MARINES IN KOREA. RETURNING AGAIN TO CIVILIAN LIFE, JUDGE BORK PRACTICED LAW AS AN ASSOCIATE AND A PARTNER IN THE MEGA LAW FIRM OF KIRKLAND AND ELLIS.
HE SERVED FOR FOUR YEARS AS THE SOLICITOR GENERAL OF THE UNITED STATES, INCLUDING TWO CRISIS YEARS AS ACTING ATTORNEY GENERAL IN THE EARLY 1970s.
APPOINTED CIRCUIT JUDGE, HE SAT ON THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA FROM 1982 TO 1988.
THIS LIFETIME OF DEDICATION AND SERVICE TO OUR NATION AND ITS LAWS HAS EARNED OUR SPEAKER, AS OF RIGHT IT SHOULD, A POSITION OF SINGULAR RESPECT AND ADMIRATION AMONG THOSE WHO READ THE LAW AND ADMINISTER JUSTICE IN OUR LAND.
BUT IT IS A CURIOUS TRUTH THAT FOR ALL OF THESE EXTRAORDINARY CREDENTIALS, ROBERT HERON BORK'S MOST CERTAIN PLACE IN AMERICAN HISTORY WILL BE THAT OF A PRESIDENTIAL NOMINEE TO THE SUPREME COURT OF THE UNITED STATES WHOSE APPOINTMENT TO THAT AUGUST BODY FAILED FOR WANT OF THE ADVICE AND CONSENT OF THE UNITED STATES SENATE.
IN RECENT MONTHS, THE AMERICAN PEOPLE HAVE BEEN TITILLATED, IF NOT SCANDALIZED, BY THE RAW HUMANITY OF THE CLARENCE THOMAS CONFIRMATION HEARINGS. THERE HAS BEEN MUCH TALK OF THE LEWDNESS, THE TRIVIALITY AND THE INAPPROPRIATENESS OF THE SENATORIAL CONFIRMATION PROCESS.
OUR SPEAKER TODAY RAN THAT BANAL GAUNTLET IN 1987. IN A FORUM REPLETE WITH DEMAGOGUES PANDERING FOR PUBLIC ACCLAIM, HE DEFENDED WITH UNASSAILABLE LOGIC AND SCHOLARLY CERTITUDE THE PROPOSITION THAT THE CONSTITUTION OF THE UNITED STATES DOES NOT FRANCHISE THE SUPREME COURT TO RULE THE NATION BY ITS EDICTS.
AS WE PONDER, AT THE INVITATION OF THE CITIZENS INSURANCE COMPANY AND PUBLIC SECTOR CONSULTANTS, VISIONS FOR THE 21ST CENTURY, IT MAY BE WELL TO ASK OURSELVES WHETHER THE 20TH CENTURY WAS NOT THE AGE IN WHICH THE CONSTITUTION OF THE UNITED STATES WAS SWEPT AWAY BY A FLOOD OF LEGALISTIC SOPHISTRY, A TIDAL WAVE OF PRAGMATISM.
MORE THAN 20 YEARS AGO FORMER ATTORNEY GENERAL RAMSEY CLARK AND SENATOR SAM ERVIN DEBATED WHETHER THE SUPREME COURT WAS A POLICYMAKER OR AN ADJUDICATOR. IN TOO MANY AMERICAN LAW SCHOOLS, THAT DEBATE IS NEITHER ECHOED NOR WELCOMED.
FELIX FRANKFURTER TOLD HIS STUDENTS AT HARVARD THAT THE SUPREME COURT IS THE CONSTITUTION, AND THE ADHERENTS OF NOSE COUNT JURISPRUDENCE WERE NEVER MORE IN THEIR ASCENDANCY THAN IN THESE DAYS OF ROE V WADE REVISITED.
A CENTURY AGO THE POWERFUL PEN OF THOMAS MCINTYRE COOLEY WROTE:
"A CARDINAL RULE IN DEALING WITH WRITTEN INSTRUMENTS IS THAT THEY SHALL RECEIVE AN UNVARYING INTERPRETATION...
"A CONSTITUTION IS NOT TO BE MADE TO MEAN ONE THING AT ONE TIME, AND ANOTHER AT SOME SUBSEQUENT TIME WHEN THE CIRCUMSTANCES MAY HAVE SO CHANGED AS PERHAPS TO MAKE A DIFFERENT RULE IN THE CASE SEEM DESIRABLE.
"A PRINCIPLE SHARE OF THE BENEFIT EXPECTED FROM WRITTEN CONSTITUTIONS WOULD BE LOST IF THE RULES THEY ESTABLISHED WERE SO FLEXIBLE AS TO BEND TO CIRCUMSTANCES OR BE MODIFIED BY PUBLIC OPINION.
"IT IS WITH SPECIAL REFERENCE TO THE VARYING MOODS OF PUBLIC OPINION, AND WITH A VIEW TO PUTTING THE FUNDAMENTALS OF GOVERNMENT BEYOND THEIR CONTROL, THAT THESE INSTRUMENTS ARE FRAMED; AND THERE CAN BE NO SUCH STEADY AND IMPERCEPTIBLE CHANGE IN THEIR RULES AS INHERES IN THE PRINCIPLES OF THE COMMON LAW."
"THE OBJECT OF CONSTRUCTION, AS APPLIED TO A WRITTEN CONSTITUTION," INSISTED JUDGE COOLEY, "IS TO GIVE EFFECT TO THE INTENT OF THE PEOPLE IN ADOPTING IT."
IN OUR DAY, MORE THAN ANY IN THE NATION'S HISTORY, THE CONSTITUTION NEEDS VIGOROUS AND TIRELESS DEFENDERS. ALL AROUND THE WORLD MEN AND WOMEN ARE STRUGGLING WITH THE UNFAMILIAR TASK OF ESTABLISHING NEW FORMS OF GOVERNMENT.
THOMAS PAINE WROTE THAT GOVERNMENT IS A NATURAL RIGHT AND THAT IT IS INFINITELY WISER TO FORM A CONSTITUTION IN A COOL, DELIBERATE MANNER THAN TO TRUST TO TIME AND CHANCE.
AND ALEXANDER HAMILTON OBSERVED THAT IT WAS FOR THE PEOPLE OF THIS COUNTRY TO DECIDE WHETHER SOCIETY IS CAPABLE OF ESTABLISHING GOOD GOVERNMENT BY REFLECTION AND CHOICE, OR WHETHER WE ARE FOREVER DESTINED TO DEPEND FOR OUR POLITICAL CONSTITUTIONS ON ACCIDENT AND FORCE.
IF THE UNITED STATES OF AMERICA IN THE 21ST CENTURY IS TO BE A BEACON OF RATIONAL CHOICE TO THE EMERGING DEMOCRACIES OF THE WORLD, WE WILL SIMPLY HAVE TO DO MORE OF WHAT YOU AND I ARE HERE TO DO THIS AFTERNOON:
LISTEN TO THE VOICE OF REASON; THE VOICE OF SCHOLARSHIP; THE VOICE OF PRACTICAL EXPERIENCE IN THE ADMINISTRATION OF JUSTICE UNDER A SOLEMN POLITICAL COMPACT ORDAINED TO BE THE SUPREME LAW OF THE LAND.
IN SUM, TO HEED THE VOICE OF OUR MOST EMINENT AND LEARNED AND FORTHRIGHT GUEST - THE HONORABLE ROBERT HERON BORK.
***
REMARKS BY THOMAS E. BRENNAN
THE PEOPLE OF MICHIGAN OWE A DEBT OF GRATITUDE TO THE CITIZENS INSURANCE COMPANY FOR THEIR INSPIRING EXAMPLE OF RESPONSIBLE CORPORATE CITIZENSHIP. THESE SYMPOSIA, FOCUSING AS THEY DO ON VISIONS FOR THE 21ST CENTURY, PROVIDE OCCASIONS FOR ALL OF US TO PUT ASIDE, FOR A FEW PRECIOUS HOURS, THE NITTY AND THE GRITTY OF MAKING A LIVING, AND TURN OUR ATTENTION TO THE BIG PICTURE.
I AM ESPECIALLY GRATEFUL TO JERRY FAVERMAN AND PUBLIC SECTOR CONSULTANTS FOR THE HONOR THEY HAVE BESTOWED UPON ME HERE THIS AFTERNOON.
FOR A LAWYER, A JUDGE AND SOMETIME LEGAL AUTHOR AND EDUCATOR, THERE COULD BE NO MORE DELICIOUS ASSIGNMENT THAN TO PRESENT THE HONORABLE ROBERT HERON BORK TO AN AUDIENCE SUCH AS IS ASSEMBLED IN THIS ROOM.
CERTAINLY OUR SPEAKER TODAY IS RECOGNIZED AS THE QUINTESSENTIAL LEGAL SCHOLAR OF OUR TIME. HIS 19 YEARS ON THE FACULTY OF THE YALE LAW SCHOOL, DURING WHICH TIME HE HELD THE CHANCELLOR KENT AND ALEXANDER BICKEL CHAIRS AND HIS CURRENT APPOINTMENT AS JOHN M. OLIN SCHOLAR IN LEGAL STUDIES AT THE AMERICAN ENTERPRISE INSTITUTE, WOULD BE ENOUGH TO QUALIFY HIM FOR THAT APPELLATION, EVEN WITHOUT THE MYRIAD HONORS AND AWARDS HE HAS RECEIVED OR THE PLETHORA OF COMMITTEES AND BOARDS UPON WHICH HE HAS SERVED.
LET ME GIVE YOU A PASSING GLIMPSE OF A CURRICULUM VITAE THAT SPARKLES WITH ACADEMIC ACHIEVEMENT AND LEADERSHIP:
- MEMBER OF A PRESIDENTIAL TASK FORCE ON ANTI-TRUST;
- CONSULTANT TO A CABINET COMMITTEE ON EDUCATION;
- TRUSTEE OF THE WOODROW WILSON INTERNATIONAL CENTER FOR SCHOLARS;
- FELLOW OF THE AMERICAN ACADEMY OF ARTS AND SCIENCES;
- MEMBER OF THE BOARD OF GOVERNORS OF THE SMITH RICHARDSON FOUNDATION;
- OF THE LEGAL ADVISORY BOARD OF THE NATIONAL LEGAL CENTER FOR THE PUBLIC INTEREST;
- THE BOARD OF DIRECTORS OF THE INSTITUTE FOR EDUCATIONAL AFFAIRS;
- THE DEVELOPMENT BOARD OF THE FEDERALIST SOCIETY FOR LAW AND PUBLIC POLICY STUDIES;
- THE ADVISORY BOARD OF THE CENTER FOR CHRISTIANITY AND THE COMMON GOOD.
THERE IS MORE.
HE HOLDS THE SHELBY CULLOM DAVIS AWARD FROM THE ETHICS AND PUBLIC POLICY CENTER, AND HONORARY DEGREES FROM CREIGHTON UNIVERSITY, WILKES-BARRE COLLEGE, NOTRE DAME LAW SCHOOL, BROOKLYN LAW SCHOOL, DE SALES SCHOOL OF DIVINITY, AND ADELPHI UNIVERSITY.
IN 1984 JUDGE BORK RECEIVED THE PRESTIGIOUS FRANCIS BOYER AWARD FROM THE AMERICAN ENTERPRISE INSTITUTE FOR PUBLIC POLICY RESEARCH. I WAS PRIVILEGED TO BE IN THE AUDIENCE ON THAT OCCASION TO HEAR HIM DELIVER HIS MAGNIFICENT BOYER LECTURE.
IF LEGAL SCHOLARSHIP WERE JUDGE BORK'S ONLY ACCOMPLISHMENT, HIS PLACE IN AMERICAN LEGAL AND EDUCATIONAL ANNALS WOULD BE SECURE.
BUT OF COURSE, THERE IS MORE. MUCH, MUCH MORE.
WE SOMETIMES HEAR IT SAID THAT THOSE WHO CAN DO, DO; WHILE THOSE WHO CANNOT DO, TEACH.
OUR DISTINGUISHED GUEST SPEAKER HAS SUCCEEDED BOTH IN AND OUT OF THE ACADEMY.
HE SERVED IN THE UNITED STATES MARINE CORPS DURING WORLD WAR II, AND ON HIS DISCHARGE EARNED A LAW DEGREE AT THE UNIVERSITY OF CHICAGO.
ON GRADUATING, HE WAS RECALLED TO ACTIVE DUTY WITH THE MARINES IN KOREA. RETURNING AGAIN TO CIVILIAN LIFE, JUDGE BORK PRACTICED LAW AS AN ASSOCIATE AND A PARTNER IN THE MEGA LAW FIRM OF KIRKLAND AND ELLIS.
HE SERVED FOR FOUR YEARS AS THE SOLICITOR GENERAL OF THE UNITED STATES, INCLUDING TWO CRISIS YEARS AS ACTING ATTORNEY GENERAL IN THE EARLY 1970s.
APPOINTED CIRCUIT JUDGE, HE SAT ON THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA FROM 1982 TO 1988.
THIS LIFETIME OF DEDICATION AND SERVICE TO OUR NATION AND ITS LAWS HAS EARNED OUR SPEAKER, AS OF RIGHT IT SHOULD, A POSITION OF SINGULAR RESPECT AND ADMIRATION AMONG THOSE WHO READ THE LAW AND ADMINISTER JUSTICE IN OUR LAND.
BUT IT IS A CURIOUS TRUTH THAT FOR ALL OF THESE EXTRAORDINARY CREDENTIALS, ROBERT HERON BORK'S MOST CERTAIN PLACE IN AMERICAN HISTORY WILL BE THAT OF A PRESIDENTIAL NOMINEE TO THE SUPREME COURT OF THE UNITED STATES WHOSE APPOINTMENT TO THAT AUGUST BODY FAILED FOR WANT OF THE ADVICE AND CONSENT OF THE UNITED STATES SENATE.
IN RECENT MONTHS, THE AMERICAN PEOPLE HAVE BEEN TITILLATED, IF NOT SCANDALIZED, BY THE RAW HUMANITY OF THE CLARENCE THOMAS CONFIRMATION HEARINGS. THERE HAS BEEN MUCH TALK OF THE LEWDNESS, THE TRIVIALITY AND THE INAPPROPRIATENESS OF THE SENATORIAL CONFIRMATION PROCESS.
OUR SPEAKER TODAY RAN THAT BANAL GAUNTLET IN 1987. IN A FORUM REPLETE WITH DEMAGOGUES PANDERING FOR PUBLIC ACCLAIM, HE DEFENDED WITH UNASSAILABLE LOGIC AND SCHOLARLY CERTITUDE THE PROPOSITION THAT THE CONSTITUTION OF THE UNITED STATES DOES NOT FRANCHISE THE SUPREME COURT TO RULE THE NATION BY ITS EDICTS.
AS WE PONDER, AT THE INVITATION OF THE CITIZENS INSURANCE COMPANY AND PUBLIC SECTOR CONSULTANTS, VISIONS FOR THE 21ST CENTURY, IT MAY BE WELL TO ASK OURSELVES WHETHER THE 20TH CENTURY WAS NOT THE AGE IN WHICH THE CONSTITUTION OF THE UNITED STATES WAS SWEPT AWAY BY A FLOOD OF LEGALISTIC SOPHISTRY, A TIDAL WAVE OF PRAGMATISM.
MORE THAN 20 YEARS AGO FORMER ATTORNEY GENERAL RAMSEY CLARK AND SENATOR SAM ERVIN DEBATED WHETHER THE SUPREME COURT WAS A POLICYMAKER OR AN ADJUDICATOR. IN TOO MANY AMERICAN LAW SCHOOLS, THAT DEBATE IS NEITHER ECHOED NOR WELCOMED.
FELIX FRANKFURTER TOLD HIS STUDENTS AT HARVARD THAT THE SUPREME COURT IS THE CONSTITUTION, AND THE ADHERENTS OF NOSE COUNT JURISPRUDENCE WERE NEVER MORE IN THEIR ASCENDANCY THAN IN THESE DAYS OF ROE V WADE REVISITED.
A CENTURY AGO THE POWERFUL PEN OF THOMAS MCINTYRE COOLEY WROTE:
"A CARDINAL RULE IN DEALING WITH WRITTEN INSTRUMENTS IS THAT THEY SHALL RECEIVE AN UNVARYING INTERPRETATION...
"A CONSTITUTION IS NOT TO BE MADE TO MEAN ONE THING AT ONE TIME, AND ANOTHER AT SOME SUBSEQUENT TIME WHEN THE CIRCUMSTANCES MAY HAVE SO CHANGED AS PERHAPS TO MAKE A DIFFERENT RULE IN THE CASE SEEM DESIRABLE.
"A PRINCIPLE SHARE OF THE BENEFIT EXPECTED FROM WRITTEN CONSTITUTIONS WOULD BE LOST IF THE RULES THEY ESTABLISHED WERE SO FLEXIBLE AS TO BEND TO CIRCUMSTANCES OR BE MODIFIED BY PUBLIC OPINION.
"IT IS WITH SPECIAL REFERENCE TO THE VARYING MOODS OF PUBLIC OPINION, AND WITH A VIEW TO PUTTING THE FUNDAMENTALS OF GOVERNMENT BEYOND THEIR CONTROL, THAT THESE INSTRUMENTS ARE FRAMED; AND THERE CAN BE NO SUCH STEADY AND IMPERCEPTIBLE CHANGE IN THEIR RULES AS INHERES IN THE PRINCIPLES OF THE COMMON LAW."
"THE OBJECT OF CONSTRUCTION, AS APPLIED TO A WRITTEN CONSTITUTION," INSISTED JUDGE COOLEY, "IS TO GIVE EFFECT TO THE INTENT OF THE PEOPLE IN ADOPTING IT."
IN OUR DAY, MORE THAN ANY IN THE NATION'S HISTORY, THE CONSTITUTION NEEDS VIGOROUS AND TIRELESS DEFENDERS. ALL AROUND THE WORLD MEN AND WOMEN ARE STRUGGLING WITH THE UNFAMILIAR TASK OF ESTABLISHING NEW FORMS OF GOVERNMENT.
THOMAS PAINE WROTE THAT GOVERNMENT IS A NATURAL RIGHT AND THAT IT IS INFINITELY WISER TO FORM A CONSTITUTION IN A COOL, DELIBERATE MANNER THAN TO TRUST TO TIME AND CHANCE.
AND ALEXANDER HAMILTON OBSERVED THAT IT WAS FOR THE PEOPLE OF THIS COUNTRY TO DECIDE WHETHER SOCIETY IS CAPABLE OF ESTABLISHING GOOD GOVERNMENT BY REFLECTION AND CHOICE, OR WHETHER WE ARE FOREVER DESTINED TO DEPEND FOR OUR POLITICAL CONSTITUTIONS ON ACCIDENT AND FORCE.
IF THE UNITED STATES OF AMERICA IN THE 21ST CENTURY IS TO BE A BEACON OF RATIONAL CHOICE TO THE EMERGING DEMOCRACIES OF THE WORLD, WE WILL SIMPLY HAVE TO DO MORE OF WHAT YOU AND I ARE HERE TO DO THIS AFTERNOON:
LISTEN TO THE VOICE OF REASON; THE VOICE OF SCHOLARSHIP; THE VOICE OF PRACTICAL EXPERIENCE IN THE ADMINISTRATION OF JUSTICE UNDER A SOLEMN POLITICAL COMPACT ORDAINED TO BE THE SUPREME LAW OF THE LAND.
IN SUM, TO HEED THE VOICE OF OUR MOST EMINENT AND LEARNED AND FORTHRIGHT GUEST - THE HONORABLE ROBERT HERON BORK.
Sunday, January 25, 2009
A FEW WORDS TO THE GRADUATES
On January 17, 2009, it was my privilege to address the 100th graduating class at the Thomas M. Cooley Law School. Here's what I said:
***
I never thought I would live to see this day.
If Cooley had been like all the other law schools… if Cooley had only one graduation a year, I’d have to be 147 years old.
The privilege which President LeDuc has afforded me … to speak at the one hundredth Commencement Exercise… is another of the many advantages of Cooley’s unique three semester system. And I am truly honored and grateful for his invitation.
Graduation ceremonies,Commencement Exercises…are very special occasions.
The first speech I ever gave at a Commencement ceremony was 62 years ago.
I was the valedictorian at my graduation from Detroit Catholic Central High School in June of 1947.
I had memorized my speech…rehearsed it over and over, but when the day came, I was scared to death. I kept pacing around the cafeteria repeating the first line. It was all I could remember.
Suddenly, Bob Barson, a two hundred fifty pound tackle on the football team grabbed me by the collar and said, “Keep it short, Brennan.” I said, “Don’t worry, Bob, I can only remember fourteen words.”
The Basilian Fathers invited me back to my high school alma mater to speak to the graduates in 1952. By this time I was an old married man of 23, father of a three month old son and a recent graduate of the University of Detroit Law School.
My dear wife, Polly, went along to hear me that day, just as she has come here today to lend her support and encouragement.
That graduating class back in 1952 consisted of about 200 eighteen year old boys who were facing possible conscription for the Korean War. I thought I gave them a pretty rousing call to arms.
Last summer I discovered that a golfing buddy of mine was also a alumnus of Detroit Catholic Central High School. I asked him when he graduated and he said, “1952.”
So I asked him if he remembered who was the commencement speaker at his graduation. He didn’t remember. Did he, by chance recall anything the commencement speaker had said? He didn’t remember. Did he remember anything at all about that commencement speech? “I think..” He said. “I think it was too long.”
We both had a good laugh when I told him I had been that very forgettable guest speaker at his graduation. I told him I still have a copy of the speech, if he’d like to hear it again. He didn’t seem to be interested.
The truth is that commencement speeches don’t usually have a lot of shelf life.
Graduates are always very focused on their own part of the ceremony, relatives and friends are focused on the graduates and faculty are so eyesore from correcting exams that they can hardly focus at all.
But once in a while, serendipity strikes and somebody remembers. I gave a commencement speech at the University of Detroit High School in 1969. The school liked it enough to have reprints made and send them out to their alumni.
Sometime in the late 1990’s, I got a phone call from a woman in Livonia who was looking for a copy of that talk. It seems that her older brother had graduated in the class of 1969, and she had attended the ceremony. Now, thirty years later, she was the mother of a teen age daughter, and she wanted her daughter to read my speech.
I have to admit that I was flattered by that. Thirty years is a long time to remember something that somebody says.
It isn’t easy to look thirty years down the road. We live in a world of constantly accelerating change. When was the last time you saw a typewriter, an ash tray or a pay phone? Who would have predicted, thirty years ago, the proliferation of cell phones, Ipods, and blackberrys that we see today?
Thirty years from now, you will see changes that are hard to imagine today. In the year 2039 there will be no network television. Television and the Internet will have merged to the point that every broadcast will be stored for convenient retrieval when, as and if a viewer is interested in seeing it.
Newspapers will be as archaic as the village crier of the 17th century.
If the postal service is still in business, it will be primarily to deliver packages. Email has already begun to supplant snail mail.
I would expect that thirty years from now DNA scanners will be as common as bar code scanners are in 2009. Credit cards will be extinct. You’ll just touch the screen and your account will be charged.
Some of the changes will be even harder to believe. I predict, for example, that by the year 2039 there will be a Division One college football playoff.
The practice of law will evolve slower than society in general; it has so far. We lawyers can be stodgy, hide bound traditionalists. Still, I would expect that thirty years from now court documents will be paperless, pleadings will be filed by email and displayed on the Internet; trials will be conducted piecemeal and recorded on video to be played to the jury after all extraneous and objectionable matters have been edited out.
It’s intriguing to speculate on the changes that will be wrought by science over the next three decades. But it’s not all just speculation. There are a number of things we can say about 2039 with some degree of certainty.
First of all, of course, you know how old you will be. If you are 26 today, you’ll be 56 in 2039.
And y’know, I wouldn’t be surprised if some of you will be sitting in the audience at the 200th Cooley Commencement watching a son or daughter receive the same diploma you are receiving here today.
In that day you will know how your life and your career will have turned out. Most of you will be practicing lawyers in big firms and small firms, as partners, shareholders or solo practicioners.
Some of you will use your legal education in other ways. You’ll be business men and women, bankers, brokers, teachers, artists, writers, sports agents, legislators, lobbyists, and clergymen.
One of you may well emulate Mary Coleman, after whom your class has been named, and become the first woman chief justice of your state’s supreme court.
Other Cooley graduates have gone on to become Congressmen, judges, prosecutors, governors, corporate executives, leaders of the organized bar and law professors.
There is no reason to believe that you won’t do the same.
Some of you will make a lot of money, and some won’t do so well, but I can safely predict that all of you will be able to support yourselves and your families in reasonable circumstances.
After all, you have already demonstrated by your success here at Cooley that you have the perseverance and the work ethic to achieve any reasonable goal you set for yourself.
No doubt by 2039 many of you will have lost your mothers and dads. Certainly all of your grandparents will be dead by then.
So, if you will indulge me, I would like to speak to you for a few moments in the role of a grandfather.
When I was a child, my most serious sin was to disobey my mother and father. Ultimately the lesson sunk in that it was their job to teach me right from wrong and my job to learn and to follow.
My dad’s most memorable sermon was short and to the point: “You know what’s wrong and you know what’s right. Do what’s right.”
Obedience to authority is the forerunner of self control and self discipline. No one becomes a general who has not been a good soldier, nor a teacher who has not first been a student. Only a team player can be the captain. True leadership is built on a foundation of followship.
You came to Cooley Law School three years ago to get an education.
You came to Cooley to listen and to read and to think and to learn.
You came to Cooley three years ago, hoping that someday, somehow, you were going to be somebody.
Well, I’m here to tell each and every one of you ladies and gentlemen that you are somebody. The diploma that President LeDuc will hand to you on this stage this afternoon will attest to all the world that you are a member of the ancient and honorable profession of the law.
By subordinating your time, attention and energy to the faculty; by getting down into the trenches, following orders, obeying the rules, and taking all the flak this distinguished faculty has thrown at you for three years, you have not only fulfilled your own personal dream and ambition, you have accomplished the larger achievement of making yourself one of the keepers of our sacred tradition of ordered liberty.
As a lawyer, you will be a leader in your community. What you do will reverberate. What you say will echo. Your life, your career in the law will have impact far beyond your expectations, far beyond what you will realize.
In a few days our nation will enter upon a new and exciting era in history. A man of African descent and heritage will assume the highest office in the land.
I didn’t vote for Barack Obama. I didn’t vote for him because I disagreed with his stance on some very fundamental issues.
But as I watched him address his followers in Grant Park on election night, and as the cameras panned across the kaleidoscope of smiling, tearstained faces in the audience, my heart swelled with pride to think that the people of this nation had made such a bold and historic choice.
That night I called my old friend Charles Farmer, a black judge with whom I served in Detroit, and who was later a member of the Cooley Board of Directors. When Charles Farmer graduated from law school in 1948, he was refused admission to the American Bar Association because of his race. Later, he became one of the first black judges in Detroit. He served for many years and was universally respected and admired.
I congratulated Judge Farmer and I told him that the presidential victory had come to his people because he and so many others had patiently and courageously paved the way through dedicated and responsible public service.
Mary Stallings Coleman, the patron of your class, was a colleague of mine on the Michigan Supreme Court.
It was Mary Coleman who shattered the glass ceiling in Michigan’s legal profession. She was the first woman elected to the Supreme Court and the first to serve as Chief Justice.
Mary Coleman was a lady.
She wasn’t one of those bra-burning, man-hating, publicity-seeking, potty-mouthed militant feminists. She was a real lady.
She was a gracious, warm, charming, thoroughly feminine, and strikingly beautiful woman. And a damn good lawyer.
Her legacy abides in the capital city of Lansing. Today, the majority of the justices of the Michigan Supreme Court are women.
None of us ever knows the great oaks that will grow from the seeds we plant with our lives.
When I retired from the Presidency of Cooley, the school presented me with two bound volumes of letters from alumni thanking me for the opportunity to study law and telling me of the many ways in which their lives had been affected by their legal education.
It was a touching and humbling gift. Names I didn’t recognize. People I didn’t know. All expressing heartfelt thanks.
And it will be the same for each of you.
The people who make a difference… the people who leave this old world a little better than they found it…are not measured by their celebrity. The talking heads on TV and the paparazzi pestered entertainers leave no special imprint on society.
It is rather the men and women like yourselves, who by their commitment and example, by their constancy and personal responsibility, day in and day out, year in and year out, build the communities that shape our nation, protect our democratic republic, and preserve our American heritage of liberty and opportunity.
You will accomplish great things in the next 30 years.
Not all at once, and not without the kind of grinding perseverance you have shown here at Cooley.
The rocky road from the womb to the tomb is strewn with setbacks and obstacles, delays, disappointments and difficulties.
I’m sure you have heard of Murphy’s Law. Murphy’s Law teaches us that whatever can go wrong, does go wrong.
By now you should know about Cooley’s Law. Cooley’s Law is that no challenge, no accomplishment, no goal is beyond the reach of the man or woman who is truly committed.
And that, in the final analysis, the definition of success is nothing more nor less than getting back up again.
All of which brings me around to one final bit of grandfatherly advice. If there is anything I will have said to you here this afternoon worth remembering and worth passing along to your children and grandchildren, this is it:
If you drop it, pick it up.
If you spill it wipe it up.
If you forget it, go back and get it.
If you break it, fix it.
If you destroy it, replace it.
If you owe it, pay it.
If you did it, admit it.
And always remember that most of the forward progress we make in the game of life is getting back to the line of scrimmage.
Congatulations, Coleman Class.
This is your day.
You earned it, now enjoy it.
***
I never thought I would live to see this day.
If Cooley had been like all the other law schools… if Cooley had only one graduation a year, I’d have to be 147 years old.
The privilege which President LeDuc has afforded me … to speak at the one hundredth Commencement Exercise… is another of the many advantages of Cooley’s unique three semester system. And I am truly honored and grateful for his invitation.
Graduation ceremonies,Commencement Exercises…are very special occasions.
The first speech I ever gave at a Commencement ceremony was 62 years ago.
I was the valedictorian at my graduation from Detroit Catholic Central High School in June of 1947.
I had memorized my speech…rehearsed it over and over, but when the day came, I was scared to death. I kept pacing around the cafeteria repeating the first line. It was all I could remember.
Suddenly, Bob Barson, a two hundred fifty pound tackle on the football team grabbed me by the collar and said, “Keep it short, Brennan.” I said, “Don’t worry, Bob, I can only remember fourteen words.”
The Basilian Fathers invited me back to my high school alma mater to speak to the graduates in 1952. By this time I was an old married man of 23, father of a three month old son and a recent graduate of the University of Detroit Law School.
My dear wife, Polly, went along to hear me that day, just as she has come here today to lend her support and encouragement.
That graduating class back in 1952 consisted of about 200 eighteen year old boys who were facing possible conscription for the Korean War. I thought I gave them a pretty rousing call to arms.
Last summer I discovered that a golfing buddy of mine was also a alumnus of Detroit Catholic Central High School. I asked him when he graduated and he said, “1952.”
So I asked him if he remembered who was the commencement speaker at his graduation. He didn’t remember. Did he, by chance recall anything the commencement speaker had said? He didn’t remember. Did he remember anything at all about that commencement speech? “I think..” He said. “I think it was too long.”
We both had a good laugh when I told him I had been that very forgettable guest speaker at his graduation. I told him I still have a copy of the speech, if he’d like to hear it again. He didn’t seem to be interested.
The truth is that commencement speeches don’t usually have a lot of shelf life.
Graduates are always very focused on their own part of the ceremony, relatives and friends are focused on the graduates and faculty are so eyesore from correcting exams that they can hardly focus at all.
But once in a while, serendipity strikes and somebody remembers. I gave a commencement speech at the University of Detroit High School in 1969. The school liked it enough to have reprints made and send them out to their alumni.
Sometime in the late 1990’s, I got a phone call from a woman in Livonia who was looking for a copy of that talk. It seems that her older brother had graduated in the class of 1969, and she had attended the ceremony. Now, thirty years later, she was the mother of a teen age daughter, and she wanted her daughter to read my speech.
I have to admit that I was flattered by that. Thirty years is a long time to remember something that somebody says.
It isn’t easy to look thirty years down the road. We live in a world of constantly accelerating change. When was the last time you saw a typewriter, an ash tray or a pay phone? Who would have predicted, thirty years ago, the proliferation of cell phones, Ipods, and blackberrys that we see today?
Thirty years from now, you will see changes that are hard to imagine today. In the year 2039 there will be no network television. Television and the Internet will have merged to the point that every broadcast will be stored for convenient retrieval when, as and if a viewer is interested in seeing it.
Newspapers will be as archaic as the village crier of the 17th century.
If the postal service is still in business, it will be primarily to deliver packages. Email has already begun to supplant snail mail.
I would expect that thirty years from now DNA scanners will be as common as bar code scanners are in 2009. Credit cards will be extinct. You’ll just touch the screen and your account will be charged.
Some of the changes will be even harder to believe. I predict, for example, that by the year 2039 there will be a Division One college football playoff.
The practice of law will evolve slower than society in general; it has so far. We lawyers can be stodgy, hide bound traditionalists. Still, I would expect that thirty years from now court documents will be paperless, pleadings will be filed by email and displayed on the Internet; trials will be conducted piecemeal and recorded on video to be played to the jury after all extraneous and objectionable matters have been edited out.
It’s intriguing to speculate on the changes that will be wrought by science over the next three decades. But it’s not all just speculation. There are a number of things we can say about 2039 with some degree of certainty.
First of all, of course, you know how old you will be. If you are 26 today, you’ll be 56 in 2039.
And y’know, I wouldn’t be surprised if some of you will be sitting in the audience at the 200th Cooley Commencement watching a son or daughter receive the same diploma you are receiving here today.
In that day you will know how your life and your career will have turned out. Most of you will be practicing lawyers in big firms and small firms, as partners, shareholders or solo practicioners.
Some of you will use your legal education in other ways. You’ll be business men and women, bankers, brokers, teachers, artists, writers, sports agents, legislators, lobbyists, and clergymen.
One of you may well emulate Mary Coleman, after whom your class has been named, and become the first woman chief justice of your state’s supreme court.
Other Cooley graduates have gone on to become Congressmen, judges, prosecutors, governors, corporate executives, leaders of the organized bar and law professors.
There is no reason to believe that you won’t do the same.
Some of you will make a lot of money, and some won’t do so well, but I can safely predict that all of you will be able to support yourselves and your families in reasonable circumstances.
After all, you have already demonstrated by your success here at Cooley that you have the perseverance and the work ethic to achieve any reasonable goal you set for yourself.
No doubt by 2039 many of you will have lost your mothers and dads. Certainly all of your grandparents will be dead by then.
So, if you will indulge me, I would like to speak to you for a few moments in the role of a grandfather.
When I was a child, my most serious sin was to disobey my mother and father. Ultimately the lesson sunk in that it was their job to teach me right from wrong and my job to learn and to follow.
My dad’s most memorable sermon was short and to the point: “You know what’s wrong and you know what’s right. Do what’s right.”
Obedience to authority is the forerunner of self control and self discipline. No one becomes a general who has not been a good soldier, nor a teacher who has not first been a student. Only a team player can be the captain. True leadership is built on a foundation of followship.
You came to Cooley Law School three years ago to get an education.
You came to Cooley to listen and to read and to think and to learn.
You came to Cooley three years ago, hoping that someday, somehow, you were going to be somebody.
Well, I’m here to tell each and every one of you ladies and gentlemen that you are somebody. The diploma that President LeDuc will hand to you on this stage this afternoon will attest to all the world that you are a member of the ancient and honorable profession of the law.
By subordinating your time, attention and energy to the faculty; by getting down into the trenches, following orders, obeying the rules, and taking all the flak this distinguished faculty has thrown at you for three years, you have not only fulfilled your own personal dream and ambition, you have accomplished the larger achievement of making yourself one of the keepers of our sacred tradition of ordered liberty.
As a lawyer, you will be a leader in your community. What you do will reverberate. What you say will echo. Your life, your career in the law will have impact far beyond your expectations, far beyond what you will realize.
In a few days our nation will enter upon a new and exciting era in history. A man of African descent and heritage will assume the highest office in the land.
I didn’t vote for Barack Obama. I didn’t vote for him because I disagreed with his stance on some very fundamental issues.
But as I watched him address his followers in Grant Park on election night, and as the cameras panned across the kaleidoscope of smiling, tearstained faces in the audience, my heart swelled with pride to think that the people of this nation had made such a bold and historic choice.
That night I called my old friend Charles Farmer, a black judge with whom I served in Detroit, and who was later a member of the Cooley Board of Directors. When Charles Farmer graduated from law school in 1948, he was refused admission to the American Bar Association because of his race. Later, he became one of the first black judges in Detroit. He served for many years and was universally respected and admired.
I congratulated Judge Farmer and I told him that the presidential victory had come to his people because he and so many others had patiently and courageously paved the way through dedicated and responsible public service.
Mary Stallings Coleman, the patron of your class, was a colleague of mine on the Michigan Supreme Court.
It was Mary Coleman who shattered the glass ceiling in Michigan’s legal profession. She was the first woman elected to the Supreme Court and the first to serve as Chief Justice.
Mary Coleman was a lady.
She wasn’t one of those bra-burning, man-hating, publicity-seeking, potty-mouthed militant feminists. She was a real lady.
She was a gracious, warm, charming, thoroughly feminine, and strikingly beautiful woman. And a damn good lawyer.
Her legacy abides in the capital city of Lansing. Today, the majority of the justices of the Michigan Supreme Court are women.
None of us ever knows the great oaks that will grow from the seeds we plant with our lives.
When I retired from the Presidency of Cooley, the school presented me with two bound volumes of letters from alumni thanking me for the opportunity to study law and telling me of the many ways in which their lives had been affected by their legal education.
It was a touching and humbling gift. Names I didn’t recognize. People I didn’t know. All expressing heartfelt thanks.
And it will be the same for each of you.
The people who make a difference… the people who leave this old world a little better than they found it…are not measured by their celebrity. The talking heads on TV and the paparazzi pestered entertainers leave no special imprint on society.
It is rather the men and women like yourselves, who by their commitment and example, by their constancy and personal responsibility, day in and day out, year in and year out, build the communities that shape our nation, protect our democratic republic, and preserve our American heritage of liberty and opportunity.
You will accomplish great things in the next 30 years.
Not all at once, and not without the kind of grinding perseverance you have shown here at Cooley.
The rocky road from the womb to the tomb is strewn with setbacks and obstacles, delays, disappointments and difficulties.
I’m sure you have heard of Murphy’s Law. Murphy’s Law teaches us that whatever can go wrong, does go wrong.
By now you should know about Cooley’s Law. Cooley’s Law is that no challenge, no accomplishment, no goal is beyond the reach of the man or woman who is truly committed.
And that, in the final analysis, the definition of success is nothing more nor less than getting back up again.
All of which brings me around to one final bit of grandfatherly advice. If there is anything I will have said to you here this afternoon worth remembering and worth passing along to your children and grandchildren, this is it:
If you drop it, pick it up.
If you spill it wipe it up.
If you forget it, go back and get it.
If you break it, fix it.
If you destroy it, replace it.
If you owe it, pay it.
If you did it, admit it.
And always remember that most of the forward progress we make in the game of life is getting back to the line of scrimmage.
Congatulations, Coleman Class.
This is your day.
You earned it, now enjoy it.
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