SOPHISTRY IN IOWA

I have not studied a Supreme Court opinion in more that 35 years. Even that long ago, I noted a disposition among some justices to reason their way to absurd conclusions.

Varnum v Brien, decided by the Iowa Supreme Court on April 3, 2009, provides a classic example of intellectual versatility. The court concluded that the duly enacted Iowa statute defining marriage as a contract between one man and one woman violates the state constitution's equal protection clause.

To get to its foregone conclusion, the court had to begin by rewriting the statute. The Iowa law said nothing about sexual orientation. The law applies equally to persons of both sexes and of all sexual orientations.

The problem is that the court doesn't seem to know that marriage is a contract; a special kind of contract, one which is affected with the public interest.

The right to make contracts is one of the fundamental freedoms protected by our constitutions. No government permission is required to make a contract to buy a house, or form a partnership, or sell a car. Why do people have to get a license from the government to get married? Because the contract of marriage is affected with the public interest.

Marriage is, at its core, a mating contract. It is the agreement between a man and a woman which enables them to procreate human beings. That's why marriage is so special, so important, so solemn an undertaking. That's why the state regulates marriage, dictates who can marry, at what age, what degrees of consanguinity can marry, what formalities must be observed, how many people one can be married to,and how and why marriages can be dissolved.

The conception of a human being requires an egg from a female and sperm from a male. The DNA of every person is drawn from both parents. Logic, tradition and common sense dictate that both parents should have bonds of affection, responsibility, and dedication with the products of their cohabitation.

Every civilization known to man has had its protocol for marriage. From the most primative tribes to the most sophisticated empires, the natural roles of mothers and fathers are recognized and observed.

Two people of the same sex cannot procreate human beings. They cannot mate. They cannot be mates. It is physically impossible. How then, can they enter into a mating contract? Even the cerebral members of the Iowa Supreme Court cannot make that happen.

What they have done is to redefine marriage by eliminating its core identity as a mating contract. Having asserted that marriage is merely one form of a living arrangement, they then conclude that there is no substantial difference between homosexual and heterosexual unions.

The Iowa decision is another example of permissiveness in high places. If you read the court's opinion, you will see that they were terribly impressed with what nice people the plaintiffs were; school teachers, doctors, lawyers, responsible citizens. And all these nice people want is for the state of Iowa to place it's imprimatur on the form of sexual gratification they prefer.

The courts have already declared laws against sodomy to be unconstitutional. The law allows homosexuals to live together, to adopt children, to leave property to each other, to make any kind of living partnership they prefer. Those incidents are not enough for them. They want their sexual relationship to be equated with that of a man and a woman united in marriage.

Varnum v Brien is an exercise in political correctness which defies logic, common sense, history and the common good. It flies in the face of the will of the people. It is another unhappy example of the black robe syndrome; the mystic infusion of superior wisdom and judgment that is supposed to accompany the installation of judicial officers.

TEA PARTIES AND THE CONSTITUTION

Well, the Tea Parties are over, for this year at least.

Aside from reenacting the role of Howard Beale in "Network" and giving six or seven hundred thousand Americans a chance to shout "I'm mad as hell, and I'm not going to take it any longer" just what has been accomplished?

The mainstream media ignored the Tea Parties. President Obama claimed not to have been aware of them. Were all those people just shaking their fists at the sky?

Perhaps. No doubt the Republican Party will see in them the seeds of an electoral revival in two years. Conservatives see them as the leading edge of a populist revolt.

Now comes Randy Barnett, Professor of Constitutional Law at Georgetown, who favors the Wall Street Journal's Opinion page with the suggestion that the Tea Parties evidence a public demand for a "Federalism Amendment" to the US Constitution. The good professor has even drafted a proposed five section 230 word amendment which he explains in detail to the WSJ readers.

What caught my eye was his mention of Article V, the constitutional provision which authorizes an amendatory convention to be called on application of two thirds of the state legislatures.

Like so many others, pragmatic politicos and academics as well, Barnett doesn't really want to see an Article V convention. He advocates threatening one in the hope that the Congress will propose his amendment out of fear that two thirds of the states might demand one.

The Friends of an Article V Convention (FOAVC) have watched this bubble burst many times before. One issue advocates demand an Article V convention with tongue in cheek. They don't trust representative self government any more than the nay sayers who oppose a convention for any purpose. They talk and act like they want a convention only to push Congress into proposing their favored amendment.

The Tea Party Movement will begin to have some meaning when its promoters agree that the United States of America is at critical point in its history; that only an amendatory convention as envisioned by Article V can save our nation from consigning the charter of our republican form of government to the archives of history, while each new generation accepts more and more the idea that the federal government is all powerful, above restraint, and beyond the capacity of the citizenry to control.

The mob shouts for a benign dictator. Reasonable voices are hard to hear.

ECON 101

Financial analysts talk funny. Today I received in the mail an article by one of them which highlighted this profound obsevation:

"Debt-financed consumption is no longer a sustainable model for global economic growth."

Du???

Did debt-financed consumption used to be a sustainable model for global economic growth? Was it ever? And who in the world was toying with that model?

My Dad used to say that the last depression was caused by speculators and the next one would be caused by borrowers. Prophetic. He died in 1958. Mother always wanted a brick house. Dad was happy to stay in our frame two story home on the west side of Detroit. He said it was paid for and that he could sell shoe laces and live there.

He would have thought debt-financed consumption was insane and immoral. Borrow money to go on vacation? Borrow money to buy Christmas or birthday gifts? Borrow money to spend? Unthinkable. You borrowed money to invest; to buy a house, maybe to buy a car, if you really needed one.

The people of the Great Depression learned to live hand to mouth, scrape to get by, go to bed hungry. Hand me down clothes, half soled shoes, back yard vegetable gardens; these were hallmarks of an era when survival trumped comfort, when a penny saved was a penny earned, when being a debtor was tantamount to being enslaved.

How can anyone be surprised by our current economic collapse when the American people have run up nearly three trillion dollars of personal debt? Didn't anyone wonder why people with no visible means of support were getting weekly offers of credit cards, for which they had been notoriously 'pre-approved'?

And how is it supposed that what we need now is to rev up the flow of credit? The flow of credit is what got us into this mess. What we need now is to pay off debt, save our money, get back to solvency, both as individuals and as a nation.

Of course, that's not what you hear from Washington. Our federal government is all about bailouts, stimulus, spending incomprehensible amounts of money to get us back to the halcyon days of the 1990's when everybody danced and nobody thought about paying the fiddler.

The good news is that capitalism is in the genes. People always act in their perceived self interest. Sometimes that perception is cloudy, and they go off in the wrong direction. But when all the artificial costumes are ripped away, and the king is seen to be in the altogether, people do what they need to do.

The American people say "let the car companies go bankrupt", "let the big banks and investment funds go belly up." At the core, they believe in free enterprise. They know that when you let the losers lose, you make it possible for the winners to win.

An orgy of corporate mergers and acquisitions has given us a corporate landscape bloated with unnecessary employees, duplicate corporate officers,unjustified frills, fringes and favors. In the natural course of events they will crumble and be overtaken by new, lean, competitive organizations with new ideas and a new culture of efficiency.

The cycles of boom and bust, bull and bear, the ups and downs of a free economy are self regulating. They are the self policing consequences of free men and women making free decisions about their own material well being.

America will survive because Americans will survive. The best thing the politicians can do is to get out of the way.

ANOTHER VOICE IS RAISED

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.

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.

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.

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.