Abraham Lincoln called him ‘a misguided fanatic.’ He has been described as ‘a monomaniacal zealot’ and ‘the father of American terrorism.’
He has also been hailed as ‘one of the most perceptive human beings of his generation’, the man who ‘killed slavery’, and ‘an American who gave his life that millions of other Americans might be free.’
When John Brown was hanged for treason on December 2, 1859, church bells rang throughout the northern states. Revered American poets, Ralph Waldo Emerson and Henry David Thoreau, joined in heaping praise on the man who believed that slavery could only be abolished by bloodshed.
The soul-stirring words and music we know as The Battle Hymn of the Republic descended from a Union soldiers’ marching chant that proclaimed “John Brown’s body lies mouldering in the grave; but his soul goes marching on”
The verdict of history needs long and arduous deliberation.
On Sunday, May 31, 2009, in the foyer of Reformation Lutheran Church in Wichita, Kansas – the state where John Brown emerged as a militant abolitionist –George Tiller, a licensed physician, whose Women’s Health Care Services clinic is one of only a few in the nation which perform abortions after the 21st week of pregnancy, was shot to death by an unknown assailant.
No doubt in the days and months ahead someone will be arrested, and charged with Doctor Tiller’s murder. In the course of bringing the killer to justice, America will be plunged into the most emotional debate of the century.
Some will demand that the accused be tried for a hate crime, ratcheting up the punishment if not diminishing the presumption of innocence. If the accused turns out to be someone who has made anti abortion statements or participated in anti abortion demonstrations, those facts will be introduced in evidence as tending to prove that the accused is guilty of murder.
Others will lionize the accused, calling him a courageous hero who acted to save the lives of countless unborn children.
I am, I believe, among a majority of Americans who will view the event with heart wrenching ambivalence. On the one hand no one can or should condone the murder of Doctor Tiller. No one in this country, not even the most avid pro life activists, will advocate for leniency or clemency for Doctor Tiller’s killer. On the other hand, most Americans do not approve of late term abortions, and even the Supreme Court, in Roe v Wade, held that abortions could be restricted in the third trimester, that is, after 24 weeks of gestation.
So there is a recognition, albeit an ill defined acknowledgement, by most people, that, at some point in time, an unborn child begins to acquire civil rights. The right to be compensated for injuries caused by the negligence of a third party, for example, has long been recognized by our courts. The unborn can inherit property. They can be trust beneficiaries. They can be the subject of custody orders in divorce actions.
The abortion debate is visceral and emotional. It is cast in terms of women’s rights, of religious convictions, of moral judgments, and of personal privacy. It is hard to imagine that there is much common ground or room for compromise between the shrill advocates on both sides.
Still there is a simple constitutional question that must be answered, and answered authoritatively, clearly and finally if there is to be an end to this war of words.
That question is simply this: When does a human being become a “person” within the meaning of the Bill of Rights?
The Fifth Amendment, part of the Bill of Rights, expressly provides that “No person shall … be deprived of life liberty or property without due process of law…”
Clearly a state law which permitted a mother or father or both of them to kill their new born child for a month, a day, or even a minute would violate the civil rights of the baby. Even if the child were a burden. Even if the child were deformed. A person is a person. The Bill of Rights protects us all.
The question is, when does it start protecting us? Is there any basis in reason or human experience to distinguish between a new born infant and a fully developed fetus?
If a new born infant is a person within the meaning of the Bill of Rights; if even a prematurely delivered new born, surviving only on mechanical life support is a person protected by the Fifth Amendment; how can it be said that a viable fetus is not a person, even during labor, even after he or she has, through natural biological changes triggered the mother’s involuntary muscular response and initiated the birthing process.
The judgment of history is impossible to predict. John Brown is now revered as a prophet of civil rights and the provocateur of the Civil War.
Perhaps in the twenty second century it will be said that the murder of Doctor Tiller and the trial of his killer became the catalysts of a national debate which ultimately resolved the gut wrenching issue of abortion in America.
I hope so.
Saturday, June 13, 2009
Monday, June 1, 2009
I'M EIGHTY, DAMN IT
I woke up the other morning with a head full of thoughts about our world and our nation and the future, and I found myself mentally making a very passionate speech.
The speech would be full of my opinions. Unvarnished. Unadulterated. Unedited and Uncut. I got to thinking, “Hell, I’m eighty years old. Why can’t I just tell people what I think? Who cares if anybody agrees with me, or if anybody resents what I have to say, or if they write me off as a kook or ridicule me as an anachronistic, arch conservative, homophobic, irrelevant relic of a bygone day.
I’m eighty. I get to say whatever I want to say. Some civilizations revere the opinions of octogenarians. I wouldn’t put the United States of America in the 21st century in that category. The opinion makers in the media put more store in the views of Brittany Spears than those of Tom Brennan.
So be it.
The first thing I want to tell you is that the United States of America is not a democracy. When Mrs. Powel asked Benjamin Franklin whether the Philadelphia convention had created a Republic or a monarchy, he replied, “A Republic, if you can keep it.”
A democracy is ruled by the people. The people are sovereign. There is no law that supersedes the will of the people in a democracy. It is often touted as the rule of the majority, but that’s not always true. Indeed, it is rarely true. Most often the majority are complacent, silent, uninvolved. What passes for the will of the people is the will of those people who are interested, active, determined and successful at acquiring political power. The consent of the governed is more often given by acquiescence than by deliberate covenant.
There is no mention of democracy in the Declaration of Independence or the Constitution, and no responsible American statesman called our nation a democracy for the first hundred years of our history.
In the beginning of the twentieth century, the so called ‘Bull Moose’ or progressive movement brought about the adoption of state constitutional amendments authorizing legislation by initiative and referendum. That excursion into pure democracy has been a mixed blessing. While some salutary statutes and constitutional amendments have been adopted by popular vote, others have soiled the public record with hastily or emotionally adopted provisions, often poorly drafted and fraught with troublesome consequences.
It was Woodrow Wilson who first advanced the notion that our nation is a democracy. He used the term on April 2nd, 1917 when asking the Congress to declare war on Germany. He declared that we must make the world safe for democracy.
Wilson insisted that we had no issue with the German people, only with its unelected Emperor. He said that the Great War was brought about as “in the old, unhappy days when peoples were nowhere consulted by their rulers and wars were provoked and waged in the interest of dynasties or of little groups of ambitious men who were accustomed to use their fellow men as pawns and tools.”
He went on to say that “cunningly contrived schemes of deception and aggression” are “happily impossible where public opinion commands and insists on full information concerning all the nation’s affairs.”
Then he spoke about the “wonderful and heartening” events in Russia where the communist revolution had ousted the Tsar, saying that the Russian people were “democratic at heart.”
The transition from a people’s revolution to a tyrannical dictatorship came quickly in Russia, but it would not have surprised the founders of our nation.
Listen to Samuel Adams: “Democracy never lasts long. It soon wastes, exhausts and murders itself. There never was a democracy that did not commit suicide.”
Here’s Alexander Hamilton: “The ancient democracies in which the people themselves deliberated never possessed one good feature of government. Their very character was tyranny.”
James Madison, who is rightly known as the "Father of the Constitution," wrote in The Federalist, No. 10: "... democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives as they are violent in their deaths."
Perhaps Wilson wasn’t thinking of democracy in the classical, historic sense. In his eyes, a ‘democracy’ was any nation which elected its leaders.
That idea was picked up again 23 years later when Franklin Delano Roosevelt on December 29, 1940, called upon the American people to become the ‘arsenal of democracy.’
Labeling America a democracy in time of war was an effective strategy. The solidarity and sovereignty of public opinion can be the strength of a nation in time of crisis, a self administered ‘little touch of Harry in the night.’
But war time sloganeering is no substitute for rational constitution making.
Our nation was, at its formation, and remains today, a federal republic.
Our Constitution guarantees that every state shall have a republican form of government. That means government not by the people themselves, but by representatives and leaders elected by the people.
In a republic, the people do not decide what is to be done. The people decide who will decide what is to be done.
The government of the United States, created and defined by the Constitution of 1789, is a government of limited, delegated powers. The Executive, Legislative and Judicial branches of the federal government exercise sovereignty only with respect to those objects and powers spelled out in that charter.
The states remain sovereign in all matters not expressly delegated to the United States. That is what the 10th amendment, the last section of the Bill of Rights says.
I happen to believe that the tenth amendment is just as much the law of the land as the first amendment or the second or the fifth.
And the tenth amendment means today just what it meant in 1789 and what it has always meant: that, in domestic matters, the states are sovereign.
If all this sounds as titillating as ‘Civics 101’, let me apply these principles to a few hot button issues of the day.
Let’s start with gay marriage.
I understand that David Boies and Theodore Olson, the lawyers who litigated the infamous case of Bush v Gore are joining forces to ask the federal courts to declare that state laws forbidding same sex marriage violate the fourteenth amendment to the federal constitution.
I suppose those two fellows are pretty smart. They certainly have lots of courtroom experience. But frankly, the idea that the state legislatures which ratified the 14th amendment in 1868 intended to make the laws on their respective state statute books respecting marriage unconstitutional, is absolutely preposterous.
State laws have always specified the conditions for marriage; who can marry, at what age, within what degree of relationship, how a license is to be obtained, who issues it, who can perform the ceremony, what records must be kept and how the marriage can be terminated and under what conditions.
Now I suppose my opinion will win me the label of a homophobe. That’s how the public discourse works in America today. If somebody expresses an opinion you don’t want to hear, you attack that person. Call him or her names. Impugn their motives. Ridicule them. Sneer and holler. Get emotional. Get mad. Get negative. Get vicious.
But like I say, I’m eighty and I don’t give a damn.
The truth is I don’t care a hoot if Vermont allows gay marriage or Tennessee allows siblings to marry at the age of twelve, or Oregon allows assisted suicide or New York allows abortion on demand. These are all things to be decided upon by the duly elected representatives of the people of those states.
What galls me is the festering judicial oligarchy that tolerates and encourages judges, many of who are appointed for life, to make far reaching cultural edicts based on the legal fiction that they are mandates of state and federal constitutions.
Sometimes the judges even have the gall to say that they have decided to issue their dictatorial opinions precisely because the legislature has failed to act!
In other words, if you can’t get legislation through the established processes of republican government, it’s all right to subvert the constitution and ask the judges to do it by judicial fiat.
That sort of end run doesn’t bother most Americans. Pragmatism is the order of the day. “Gitter done” is the mantra. The end is cited as justification for the means.
And anyhow, the means aren’t sexy. The process, the procedure, the rules of the game, are of little interest to people who want to things to be decided in their favor.
Perhaps that is why so many Americans have no concept of how our government works, much less how it is supposed to work. Just watch Jay Lenno go out on the street and ask the folks a few simple questions and you know what I mean.
There’s a TV and radio commercial running these days that begins with the declaration that President Obama has passed such and such a law. Similar statements appear on the Internet. If you were to challenge the sponsor of those ads and point out that it’s the Congress and not the President that passes the laws, I’m sure they would give you a blank stare and say something like “Whatever.”
There is no more pernicious example of judicial usurpation than the infamous Roe v Wade decision of 1972. At the time of that decision, performing an abortion was a criminal offense in every state of the union. There had been some political support for liberalizing those laws in some states, but it was hardly what you would call a ground swell.
The advocates for abortion then and now frame the issue as ‘a woman’s right to choose.’ It sounds very high minded and progressive. Rights are good. Choosing is good.
But the abortion laws never had anything to do with a woman’s right to choose. It never was a crime for a woman to have an abortion or for a woman to attempt to abort a fetus in her womb.
What was outlawed was the action of some other person, whether a medical doctor or someone else, to cause the miscarriage of a pregnant woman. Consent of the pregnant woman was not a defense.
The abortion issue is closely related to the issue of assisted suicide. No doubt the argument will be made, in fact it has been made, that people have a natural right to kill themselves. It will surely be popularized as ‘the elderly’s right to choose.’
The error of this line of thinking is in confusing the power with the right. A woman may have the power to terminate her pregnancy, just as she may have the power to cut off her finger or pluck out her eye. I may have the power to take my own life. But should society confer upon us the right to do those things just because we have the power? And should the community be obligated to let us have help in doing those things to ourselves?
On November 18, 1978, 909 people committed a mass suicide in Jonestown, Guyana. Would anyone argue that the police should not have been permitted to interfere if they had arrived on time?
The regulation of the medical profession, like the regulation of all other occupations, is uniquely a matter of domestic concern and historically has always been reserved to the states under the tenth amendment.
It has always been the case that the prescribing of medications and the performing of surgery are activities for which a state license must be obtained and which must be performed in compliance with state law.
Those laws are made for the health, welfare and safety of the people under what is termed the police power.
Of course the extreme liberal and libertarian view is that the state has no right to tell us what to do, if we are not hurting someone else. Every year we see a defiant parade of motorcyclists wearing no helmets circling the state capital. Of recent days, a national ‘click it or ticket’ campaign has called attention to the fact that failure to fasten a seat belt is a violation of state law.
There are lots of laws enacted to get us to act for our own good.
Police power regulations are uniquely political. They are precisely the kind of laws that belong in the realm of state authority, to be passed or repealed by state officials elected by and answerable to the voters of each state.
While we call ourselves a nation, the United States of America is not a nation in the classic, academic sense. We are not a homogenous, population with a common culture, history, disposition, economy and interest. We are rather the people of fifty different states, with different histories, different temperatures, different natural resources, different geography, different economies, and different cultures and traditions.
Our union was formed in 1789 not by conquest or migration, but by the deliberate, and expressly articulated agreement of representatives chosen by the people in each state. We have lasted and prospered because we are the freest of the free; a land where people can choose not only the weather and the land upon which to build their home, but also the type of community in which they want to live.
The great American experiment in republican government has lasted for nearly a quarter of a millennium. If it falls, if it regresses into mob rule, anarchy and tyranny, it will be because nobody listened to the old guys; nobody cared about our history, or learned about it or understood why we have succeeded thus far.
More than 200 years ago the Frenchman, de Tocqueville, warned that our nation would last only until the people discovered they could vote themselves money from the government treasury.
Perhaps it is the cynicism of old age that prompts me to view the current bailout frenzy as the forerunner of deTocqueville’s prophesy.
I don’t know. But I am eighty years old and next time I am going to trade in my Pontiac for a Ford.
The speech would be full of my opinions. Unvarnished. Unadulterated. Unedited and Uncut. I got to thinking, “Hell, I’m eighty years old. Why can’t I just tell people what I think? Who cares if anybody agrees with me, or if anybody resents what I have to say, or if they write me off as a kook or ridicule me as an anachronistic, arch conservative, homophobic, irrelevant relic of a bygone day.
I’m eighty. I get to say whatever I want to say. Some civilizations revere the opinions of octogenarians. I wouldn’t put the United States of America in the 21st century in that category. The opinion makers in the media put more store in the views of Brittany Spears than those of Tom Brennan.
So be it.
The first thing I want to tell you is that the United States of America is not a democracy. When Mrs. Powel asked Benjamin Franklin whether the Philadelphia convention had created a Republic or a monarchy, he replied, “A Republic, if you can keep it.”
A democracy is ruled by the people. The people are sovereign. There is no law that supersedes the will of the people in a democracy. It is often touted as the rule of the majority, but that’s not always true. Indeed, it is rarely true. Most often the majority are complacent, silent, uninvolved. What passes for the will of the people is the will of those people who are interested, active, determined and successful at acquiring political power. The consent of the governed is more often given by acquiescence than by deliberate covenant.
There is no mention of democracy in the Declaration of Independence or the Constitution, and no responsible American statesman called our nation a democracy for the first hundred years of our history.
In the beginning of the twentieth century, the so called ‘Bull Moose’ or progressive movement brought about the adoption of state constitutional amendments authorizing legislation by initiative and referendum. That excursion into pure democracy has been a mixed blessing. While some salutary statutes and constitutional amendments have been adopted by popular vote, others have soiled the public record with hastily or emotionally adopted provisions, often poorly drafted and fraught with troublesome consequences.
It was Woodrow Wilson who first advanced the notion that our nation is a democracy. He used the term on April 2nd, 1917 when asking the Congress to declare war on Germany. He declared that we must make the world safe for democracy.
Wilson insisted that we had no issue with the German people, only with its unelected Emperor. He said that the Great War was brought about as “in the old, unhappy days when peoples were nowhere consulted by their rulers and wars were provoked and waged in the interest of dynasties or of little groups of ambitious men who were accustomed to use their fellow men as pawns and tools.”
He went on to say that “cunningly contrived schemes of deception and aggression” are “happily impossible where public opinion commands and insists on full information concerning all the nation’s affairs.”
Then he spoke about the “wonderful and heartening” events in Russia where the communist revolution had ousted the Tsar, saying that the Russian people were “democratic at heart.”
The transition from a people’s revolution to a tyrannical dictatorship came quickly in Russia, but it would not have surprised the founders of our nation.
Listen to Samuel Adams: “Democracy never lasts long. It soon wastes, exhausts and murders itself. There never was a democracy that did not commit suicide.”
Here’s Alexander Hamilton: “The ancient democracies in which the people themselves deliberated never possessed one good feature of government. Their very character was tyranny.”
James Madison, who is rightly known as the "Father of the Constitution," wrote in The Federalist, No. 10: "... democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives as they are violent in their deaths."
Perhaps Wilson wasn’t thinking of democracy in the classical, historic sense. In his eyes, a ‘democracy’ was any nation which elected its leaders.
That idea was picked up again 23 years later when Franklin Delano Roosevelt on December 29, 1940, called upon the American people to become the ‘arsenal of democracy.’
Labeling America a democracy in time of war was an effective strategy. The solidarity and sovereignty of public opinion can be the strength of a nation in time of crisis, a self administered ‘little touch of Harry in the night.’
But war time sloganeering is no substitute for rational constitution making.
Our nation was, at its formation, and remains today, a federal republic.
Our Constitution guarantees that every state shall have a republican form of government. That means government not by the people themselves, but by representatives and leaders elected by the people.
In a republic, the people do not decide what is to be done. The people decide who will decide what is to be done.
The government of the United States, created and defined by the Constitution of 1789, is a government of limited, delegated powers. The Executive, Legislative and Judicial branches of the federal government exercise sovereignty only with respect to those objects and powers spelled out in that charter.
The states remain sovereign in all matters not expressly delegated to the United States. That is what the 10th amendment, the last section of the Bill of Rights says.
I happen to believe that the tenth amendment is just as much the law of the land as the first amendment or the second or the fifth.
And the tenth amendment means today just what it meant in 1789 and what it has always meant: that, in domestic matters, the states are sovereign.
If all this sounds as titillating as ‘Civics 101’, let me apply these principles to a few hot button issues of the day.
Let’s start with gay marriage.
I understand that David Boies and Theodore Olson, the lawyers who litigated the infamous case of Bush v Gore are joining forces to ask the federal courts to declare that state laws forbidding same sex marriage violate the fourteenth amendment to the federal constitution.
I suppose those two fellows are pretty smart. They certainly have lots of courtroom experience. But frankly, the idea that the state legislatures which ratified the 14th amendment in 1868 intended to make the laws on their respective state statute books respecting marriage unconstitutional, is absolutely preposterous.
State laws have always specified the conditions for marriage; who can marry, at what age, within what degree of relationship, how a license is to be obtained, who issues it, who can perform the ceremony, what records must be kept and how the marriage can be terminated and under what conditions.
Now I suppose my opinion will win me the label of a homophobe. That’s how the public discourse works in America today. If somebody expresses an opinion you don’t want to hear, you attack that person. Call him or her names. Impugn their motives. Ridicule them. Sneer and holler. Get emotional. Get mad. Get negative. Get vicious.
But like I say, I’m eighty and I don’t give a damn.
The truth is I don’t care a hoot if Vermont allows gay marriage or Tennessee allows siblings to marry at the age of twelve, or Oregon allows assisted suicide or New York allows abortion on demand. These are all things to be decided upon by the duly elected representatives of the people of those states.
What galls me is the festering judicial oligarchy that tolerates and encourages judges, many of who are appointed for life, to make far reaching cultural edicts based on the legal fiction that they are mandates of state and federal constitutions.
Sometimes the judges even have the gall to say that they have decided to issue their dictatorial opinions precisely because the legislature has failed to act!
In other words, if you can’t get legislation through the established processes of republican government, it’s all right to subvert the constitution and ask the judges to do it by judicial fiat.
That sort of end run doesn’t bother most Americans. Pragmatism is the order of the day. “Gitter done” is the mantra. The end is cited as justification for the means.
And anyhow, the means aren’t sexy. The process, the procedure, the rules of the game, are of little interest to people who want to things to be decided in their favor.
Perhaps that is why so many Americans have no concept of how our government works, much less how it is supposed to work. Just watch Jay Lenno go out on the street and ask the folks a few simple questions and you know what I mean.
There’s a TV and radio commercial running these days that begins with the declaration that President Obama has passed such and such a law. Similar statements appear on the Internet. If you were to challenge the sponsor of those ads and point out that it’s the Congress and not the President that passes the laws, I’m sure they would give you a blank stare and say something like “Whatever.”
There is no more pernicious example of judicial usurpation than the infamous Roe v Wade decision of 1972. At the time of that decision, performing an abortion was a criminal offense in every state of the union. There had been some political support for liberalizing those laws in some states, but it was hardly what you would call a ground swell.
The advocates for abortion then and now frame the issue as ‘a woman’s right to choose.’ It sounds very high minded and progressive. Rights are good. Choosing is good.
But the abortion laws never had anything to do with a woman’s right to choose. It never was a crime for a woman to have an abortion or for a woman to attempt to abort a fetus in her womb.
What was outlawed was the action of some other person, whether a medical doctor or someone else, to cause the miscarriage of a pregnant woman. Consent of the pregnant woman was not a defense.
The abortion issue is closely related to the issue of assisted suicide. No doubt the argument will be made, in fact it has been made, that people have a natural right to kill themselves. It will surely be popularized as ‘the elderly’s right to choose.’
The error of this line of thinking is in confusing the power with the right. A woman may have the power to terminate her pregnancy, just as she may have the power to cut off her finger or pluck out her eye. I may have the power to take my own life. But should society confer upon us the right to do those things just because we have the power? And should the community be obligated to let us have help in doing those things to ourselves?
On November 18, 1978, 909 people committed a mass suicide in Jonestown, Guyana. Would anyone argue that the police should not have been permitted to interfere if they had arrived on time?
The regulation of the medical profession, like the regulation of all other occupations, is uniquely a matter of domestic concern and historically has always been reserved to the states under the tenth amendment.
It has always been the case that the prescribing of medications and the performing of surgery are activities for which a state license must be obtained and which must be performed in compliance with state law.
Those laws are made for the health, welfare and safety of the people under what is termed the police power.
Of course the extreme liberal and libertarian view is that the state has no right to tell us what to do, if we are not hurting someone else. Every year we see a defiant parade of motorcyclists wearing no helmets circling the state capital. Of recent days, a national ‘click it or ticket’ campaign has called attention to the fact that failure to fasten a seat belt is a violation of state law.
There are lots of laws enacted to get us to act for our own good.
Police power regulations are uniquely political. They are precisely the kind of laws that belong in the realm of state authority, to be passed or repealed by state officials elected by and answerable to the voters of each state.
While we call ourselves a nation, the United States of America is not a nation in the classic, academic sense. We are not a homogenous, population with a common culture, history, disposition, economy and interest. We are rather the people of fifty different states, with different histories, different temperatures, different natural resources, different geography, different economies, and different cultures and traditions.
Our union was formed in 1789 not by conquest or migration, but by the deliberate, and expressly articulated agreement of representatives chosen by the people in each state. We have lasted and prospered because we are the freest of the free; a land where people can choose not only the weather and the land upon which to build their home, but also the type of community in which they want to live.
The great American experiment in republican government has lasted for nearly a quarter of a millennium. If it falls, if it regresses into mob rule, anarchy and tyranny, it will be because nobody listened to the old guys; nobody cared about our history, or learned about it or understood why we have succeeded thus far.
More than 200 years ago the Frenchman, de Tocqueville, warned that our nation would last only until the people discovered they could vote themselves money from the government treasury.
Perhaps it is the cynicism of old age that prompts me to view the current bailout frenzy as the forerunner of deTocqueville’s prophesy.
I don’t know. But I am eighty years old and next time I am going to trade in my Pontiac for a Ford.
Wednesday, April 29, 2009
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.
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.
Sunday, April 26, 2009
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.
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.
Monday, March 30, 2009
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.
"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.
Tuesday, February 24, 2009
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.
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.
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.
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