The KISS principle needs to be revived and observed in the nation’s capitol.
K.I.S.S. stands for Keep It Simple, Stupid.
A 1,900 page Health Care Bill is rather obviously a violation of KISS, so I would like to offer an idea that is simple, understandable, workable and founded on proven principles of free enterprise.
I call it “Medi Fex,” because it mimics Fannie Mae and Freddie Mac. Not that those two entities have acquitted themselves which much honor of late, but at least the concept of a federally chartered quasi public corporation is nothing new.
Here it is:
MEDI FEX
There is hereby created a Federal Corporation to be known as the Medical Fee Exchange Corporation which shall be authorized to purchase from health care providers such accounts receivable for medical services rendered as shall not be declared ineligible under State law.
The Medical Fee Exchange Corporation shall be governed by a Board of Directors consisting of fifteen persons appointed by the President and confirmed by the Senate, no less than seven of whom shall be licensed health care providers.
I suppose it’s a little sanguine to hope that Congress might be able to whittle 1,900pages down to two paragraphs, but I submit that those 80 words contain the substance of a health care program which leaves no one out and does what just about what everybody wants to get done.
First, if you have insurance, fine. Medi Fex leaves you right where you are.
Second, if you don’t have insurance, Medi Fex assures that you won’t be turned away by a doctor or hospital because you don’t have insurance or the money to pay in advance. You get the service and the doctor or hospital sends you a bill. If you don’t pay or can’t pay the bill, you will end up having to deal with Medi Fex. If Medi Fex doesn’t think you can afford to pay the bill, they can write it off.
Under Medi Fex, the question of what health care is or is not affordable, is decided on a case by case basis.
Under Medi Fex, the sticky question of abortion is right back where it belongs and where it was before the Supreme Court decided Roe v Wade: in the State Legislatures.
Is it too much to hope that the Republicans in the Senate might take a moment from their busy schedules to read 80 words, and think about it?
Is it too much to hope that the Democrats in the Senate might listen to an idea that didn’t originate inside the beltway?
Friday, November 20, 2009
Sunday, November 1, 2009
CHANGING AMERICA
BERRIEN COUNTY BAR ASSOCIATION
September 22, 2009
The last time I spoke to the Berrien County Bar Association was May 1, 1967. That was 42 years ago. I don’t suppose many of you were there that night.
Scott Dienes tells me he was still en ventra sa mere at the time.
The title of my talk was “A Lasting Civilization Through Law.” I seem to recall that the Harold Palladium published the full text.
I dug that old speech out and read it over. I don’t think I could say anything more pertinent today than what I said 42 years ago.
The nineteen sixties were turbulent times. Lyndon Johnson was President. There were 360 thousand American soldiers in Viet Nam; young people were becoming hippies, burning their draft cards, moving to Canada.
In San Francisco, they called it the summer of love. In Detroit it was the summer of hell. Thousands of buildings were burned, more thousands of people were arrested, 43 citizens were killed. Federal troops had to be summoned to quell the riot. You had a riot right here in Benton Harbor the year before.
White people fled the cities. When I was elected Common Pleas Court Judge in Detroit in 1961, it was the fourth largest city in America with nearly two million residents. Today there are less than 900 thousand.
In 1960, Benton Harbor had a population of about 19,000; 14,000 white and 5,000 black.
Today, the city has something like 10,000 residents, only about 500 of whom are white.
In 1967 there were no personal computers, no cell phones, no satellites.
In 1967 they were just clearing the land to start building the World Trade Center.
There’ve been a lot of changes in America.
I started my 1967 speech by talking about presidential campaign slogans. Lyndon Johnson’s “Great Society”, John Kennedy’s “New Frontier”, Roosevelt’s “New Deal” and Truman’s “Fair Deal.”
Last year we heard a new slogan: “Change we can Believe In.”
Barrack Obama was elected in 2008 because he represented change. He promised America a new era; it was to be post racial; post political. Our troops in Iraq would come home. The divisions and the stalemates, the petty politics of the past, were to be set aside. It was to be a time of hope.
Thousands of people chanting “Yes, we can” believed they were welcoming a new dawn of empowerment, a new day of accountable, transparent government.
For those of us who remember the 1960’s and the booming voice of Martin Luther King chanting his litany of aspirations for his people, the election of a president of African descent in 2008 reverberated with the echoing phrase. “I have a dream.”
But dreams have a way of dissipating with the dawn and the yawn of a new day. President Obama is still popular, still charismatic, and his election is still of historic significance.
But the American people are still hoping and still crying out for change; change to believe in; change that really makes a difference in what goes on in Washington DC; change that renews their confidence and pride in our nation.
The silent majority is speaking up all across the country. From home grown tea parties in city after city, to town hall forums, to a massive protest march on the nation’s capital.
We are a war weary, bankrupt nation, overrun with illegal immigration, drowning in consumer credit default. Our neighborhoods are haunted by empty houses and mortgage foreclosures, our Congressmen refuse to read the legislation they want us to accept on faith, our prisons are full, too many of our people are unemployed; too many are disillusioned, too many are disgusted and discouraged.
And too many expect the federal government to subsidize the economy, bolster the banks, bail out the automakers, and pay all the doctor bills.
There’s an article by columnist Charley Reese circulating on the Internet which talks about the 545 people in Washington D.C. who are responsible for all our troubles.
545 people. 435 Representatives in Congress, 100 Senators, 9 Supreme Court Justices and one President.
545 people who have either caused all of our problems or have failed to fix all the problems that have been caused by somebody else.
The gist of Charley’s tirade is that if we throw all the rascals out, we could fix everything that is wrong in America.
I don’t see it that way.
I don’t think just changing the players would accomplish anything. Saturday Night Live mocked George W. Bush for eight years. They have already started to ridicule Barack Obama.
In December of 1955, I was a Republican candidate for the United States Congress. I was defeated by a young man who was elected to succeed his father in the 15th District of Michigan.
That young man’s name was John Dingell. Today, 54 years later, he is the longest serving Congressman in the history of the United States of America.
John and I have been friends for more than half a century. He’s a nice fellow and a loyal American.
He’s also a smart politician who thinks he ought to be entitled to help run our country as long as he lives.
I don’t think so.
But I also don’t think electing new people to play the same old game is the answer. We have to change the rules of the game.
Article V of the United States Constitution provides two ways to amend the Supreme Law of the Land.
Congress can propose amendments by a two thirds vote in both houses. That has been done twenty five times.
The second way has never been used. Article V provides that if two thirds of the States request it, the Congress shall call a convention for proposing amendments.
Over the 220 years of our history, there have been 750 petitions for a convention filed in the Congress. Every state in the union has petitioned more than once.
Congress has ignored them. Congress has not even counted them.
Some people argue that petitions for a convention must all spell out the same issue. Article V doesn’t require that. The states may all want a convention for different reasons. The only thing that matters is that two thirds of the states want a convention.
I wrote a law review article in 1982 called “Return to Philadelphia.” I tried to make a case for calling an Article V convention. I didn’t exactly create a stir in the academic community.
The Federalist Society invited me to Yale University to a seminar and I gave a speech entitled “The Last Prerogative.” Still no enthusiasm.
But I am nothing if not persistent.
A couple of years ago I found some people who agree with me. A man named Bill Walker had taken a case all the way to the US Supreme Court insisting that the Congress was in violation of the constitution for not calling a convention.
Bill is a very bright fellow, but he is not a lawyer. He couldn’t find a lawyer who was willing to take his case, so he proceeded in pro per.
Of course he lost.
But Bill and I and a few others formed an organization called Friends of the Article V Convention. We pronounce the acronym FOAVC as “foe vic.”
FOAVC is non partisan. We aren’t advocating any particular amendment. We just think it’s time for the people of the United States to fix our government.
An article V convention is not a constitutional convention such as we had here in Michigan in 1963.
It would have no authority to scrap the Philadelphia charter and start all over again.
An article V convention can only propose amendments; specific changes dealing with only one subject which must be ratified by three quarters of the states.
The idea of an Article V convention has been ridiculed by both the left and the right wings of our political spectrum. You hear the cry ‘run away convention’ from those folks.
They gasp with horror at the thought that anyone would tamper with the sacred screed written by James Madison, Thomas Jefferson, Alexander Hamilton, George Washington and Benjamin Franklin.
That’s not the way the founding fathers saw it.
Here’s what Thomas Jefferson had to say in 1816:
“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, and 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 themselves, were they to rise from the dead.”
I have a long history of tilting at windmills and dreaming the impossible dream. People thought I was crazy to try to start a law school with fifty dollars.
But I really do believe that America needs an Article V convention, and I’m eighty year old so I can believe whatever I want to believe.
What kinds of amendments would a convention propose?
How about congressional term limits?
And limiting presidential war powers?
And requiring a balanced budget?
And limiting the federal debt?
The list goes on. Popular election of the President. A system of presidential primaries. Non partisan nominations to the Supreme Court, and age or term limits for the justices.
A group of professors at Yale University recently published a book entitled “The Constitution in 2020.”
They see all kinds of change in our constitution in the next eleven years, but oddly no amendments.
Like many constitutional scholars, they agree with Charles Evans Hughes who opined, “The Constitution is what the Supreme Court says it is.” And Felix Frankfurter, who told law students, “The Supreme Court is the Constitution.”
I prefer the view of Thomas M. Cooley who said, “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.”
He felt that judges who do that are guilty of “reckless disregard of official oath and public duty.”
Pragmatists argue that the constitution is too hard to amend; that approval by three quarters of the states is too difficult, and so they prefer to make the basic charter of our government and our freedoms subject to amendment by five votes on the high court.
Article VI of the constitution requires every public official to take an oath to support “this constitution.”
It’s not an oath to obey the United States Supreme Court.
No reasonable reading of the American Constitution will yield any conclusion other than that it was intended to be a written law, adopted by the supreme authority of the people of the United States and expected to remain effective and in force, according to the plain, original meaning of its words, unless and until it would be amended pursuant to Article V.
Alexander Hamilton said it this way:
“Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it, prior to such an act.”
My successor at Cooley, President Don Leduc, has given me the green light to organize a seminar on Article V as Cooley’s observance of Constitution day in 2010.
I’m looking forward to it.
I want to see us bring together constitutional scholars, legislators, and patriots from all over America to talk seriously about an Article V convention; what it can do; how it would work; why it must be done if our Republic is to be renewed and revitalized.
The seminar is but a small beginning. Because Congress must call the convention, and because Congress fears the convention, Congress will drag its feet and try to find every conceivable excuse to refuse to act.
Only an aroused citizenry can make it happen. I invite the lawyers of Berrien County to think about it, to talk about it. I invite you to visit the FOAVC website at FOAVC.org.
I thank you for the opportunity to share with you my thoughts and my dreams for this great nation.
And America is a great nation, the greatest on earth, the greatest in all of human history. But as I said 42 years ago, a lasting civilization can only be achieved through wise and effective laws, understood and supported by the people.
Eternal vigilance is the price of freedom and protecting the rule of law is a full time job.
And that, ladies and Gentlemen, is what you and I will be doing for the rest of our lives.
September 22, 2009
The last time I spoke to the Berrien County Bar Association was May 1, 1967. That was 42 years ago. I don’t suppose many of you were there that night.
Scott Dienes tells me he was still en ventra sa mere at the time.
The title of my talk was “A Lasting Civilization Through Law.” I seem to recall that the Harold Palladium published the full text.
I dug that old speech out and read it over. I don’t think I could say anything more pertinent today than what I said 42 years ago.
The nineteen sixties were turbulent times. Lyndon Johnson was President. There were 360 thousand American soldiers in Viet Nam; young people were becoming hippies, burning their draft cards, moving to Canada.
In San Francisco, they called it the summer of love. In Detroit it was the summer of hell. Thousands of buildings were burned, more thousands of people were arrested, 43 citizens were killed. Federal troops had to be summoned to quell the riot. You had a riot right here in Benton Harbor the year before.
White people fled the cities. When I was elected Common Pleas Court Judge in Detroit in 1961, it was the fourth largest city in America with nearly two million residents. Today there are less than 900 thousand.
In 1960, Benton Harbor had a population of about 19,000; 14,000 white and 5,000 black.
Today, the city has something like 10,000 residents, only about 500 of whom are white.
In 1967 there were no personal computers, no cell phones, no satellites.
In 1967 they were just clearing the land to start building the World Trade Center.
There’ve been a lot of changes in America.
I started my 1967 speech by talking about presidential campaign slogans. Lyndon Johnson’s “Great Society”, John Kennedy’s “New Frontier”, Roosevelt’s “New Deal” and Truman’s “Fair Deal.”
Last year we heard a new slogan: “Change we can Believe In.”
Barrack Obama was elected in 2008 because he represented change. He promised America a new era; it was to be post racial; post political. Our troops in Iraq would come home. The divisions and the stalemates, the petty politics of the past, were to be set aside. It was to be a time of hope.
Thousands of people chanting “Yes, we can” believed they were welcoming a new dawn of empowerment, a new day of accountable, transparent government.
For those of us who remember the 1960’s and the booming voice of Martin Luther King chanting his litany of aspirations for his people, the election of a president of African descent in 2008 reverberated with the echoing phrase. “I have a dream.”
But dreams have a way of dissipating with the dawn and the yawn of a new day. President Obama is still popular, still charismatic, and his election is still of historic significance.
But the American people are still hoping and still crying out for change; change to believe in; change that really makes a difference in what goes on in Washington DC; change that renews their confidence and pride in our nation.
The silent majority is speaking up all across the country. From home grown tea parties in city after city, to town hall forums, to a massive protest march on the nation’s capital.
We are a war weary, bankrupt nation, overrun with illegal immigration, drowning in consumer credit default. Our neighborhoods are haunted by empty houses and mortgage foreclosures, our Congressmen refuse to read the legislation they want us to accept on faith, our prisons are full, too many of our people are unemployed; too many are disillusioned, too many are disgusted and discouraged.
And too many expect the federal government to subsidize the economy, bolster the banks, bail out the automakers, and pay all the doctor bills.
There’s an article by columnist Charley Reese circulating on the Internet which talks about the 545 people in Washington D.C. who are responsible for all our troubles.
545 people. 435 Representatives in Congress, 100 Senators, 9 Supreme Court Justices and one President.
545 people who have either caused all of our problems or have failed to fix all the problems that have been caused by somebody else.
The gist of Charley’s tirade is that if we throw all the rascals out, we could fix everything that is wrong in America.
I don’t see it that way.
I don’t think just changing the players would accomplish anything. Saturday Night Live mocked George W. Bush for eight years. They have already started to ridicule Barack Obama.
In December of 1955, I was a Republican candidate for the United States Congress. I was defeated by a young man who was elected to succeed his father in the 15th District of Michigan.
That young man’s name was John Dingell. Today, 54 years later, he is the longest serving Congressman in the history of the United States of America.
John and I have been friends for more than half a century. He’s a nice fellow and a loyal American.
He’s also a smart politician who thinks he ought to be entitled to help run our country as long as he lives.
I don’t think so.
But I also don’t think electing new people to play the same old game is the answer. We have to change the rules of the game.
Article V of the United States Constitution provides two ways to amend the Supreme Law of the Land.
Congress can propose amendments by a two thirds vote in both houses. That has been done twenty five times.
The second way has never been used. Article V provides that if two thirds of the States request it, the Congress shall call a convention for proposing amendments.
Over the 220 years of our history, there have been 750 petitions for a convention filed in the Congress. Every state in the union has petitioned more than once.
Congress has ignored them. Congress has not even counted them.
Some people argue that petitions for a convention must all spell out the same issue. Article V doesn’t require that. The states may all want a convention for different reasons. The only thing that matters is that two thirds of the states want a convention.
I wrote a law review article in 1982 called “Return to Philadelphia.” I tried to make a case for calling an Article V convention. I didn’t exactly create a stir in the academic community.
The Federalist Society invited me to Yale University to a seminar and I gave a speech entitled “The Last Prerogative.” Still no enthusiasm.
But I am nothing if not persistent.
A couple of years ago I found some people who agree with me. A man named Bill Walker had taken a case all the way to the US Supreme Court insisting that the Congress was in violation of the constitution for not calling a convention.
Bill is a very bright fellow, but he is not a lawyer. He couldn’t find a lawyer who was willing to take his case, so he proceeded in pro per.
Of course he lost.
But Bill and I and a few others formed an organization called Friends of the Article V Convention. We pronounce the acronym FOAVC as “foe vic.”
FOAVC is non partisan. We aren’t advocating any particular amendment. We just think it’s time for the people of the United States to fix our government.
An article V convention is not a constitutional convention such as we had here in Michigan in 1963.
It would have no authority to scrap the Philadelphia charter and start all over again.
An article V convention can only propose amendments; specific changes dealing with only one subject which must be ratified by three quarters of the states.
The idea of an Article V convention has been ridiculed by both the left and the right wings of our political spectrum. You hear the cry ‘run away convention’ from those folks.
They gasp with horror at the thought that anyone would tamper with the sacred screed written by James Madison, Thomas Jefferson, Alexander Hamilton, George Washington and Benjamin Franklin.
That’s not the way the founding fathers saw it.
Here’s what Thomas Jefferson had to say in 1816:
“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, and 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 themselves, were they to rise from the dead.”
I have a long history of tilting at windmills and dreaming the impossible dream. People thought I was crazy to try to start a law school with fifty dollars.
But I really do believe that America needs an Article V convention, and I’m eighty year old so I can believe whatever I want to believe.
What kinds of amendments would a convention propose?
How about congressional term limits?
And limiting presidential war powers?
And requiring a balanced budget?
And limiting the federal debt?
The list goes on. Popular election of the President. A system of presidential primaries. Non partisan nominations to the Supreme Court, and age or term limits for the justices.
A group of professors at Yale University recently published a book entitled “The Constitution in 2020.”
They see all kinds of change in our constitution in the next eleven years, but oddly no amendments.
Like many constitutional scholars, they agree with Charles Evans Hughes who opined, “The Constitution is what the Supreme Court says it is.” And Felix Frankfurter, who told law students, “The Supreme Court is the Constitution.”
I prefer the view of Thomas M. Cooley who said, “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.”
He felt that judges who do that are guilty of “reckless disregard of official oath and public duty.”
Pragmatists argue that the constitution is too hard to amend; that approval by three quarters of the states is too difficult, and so they prefer to make the basic charter of our government and our freedoms subject to amendment by five votes on the high court.
Article VI of the constitution requires every public official to take an oath to support “this constitution.”
It’s not an oath to obey the United States Supreme Court.
No reasonable reading of the American Constitution will yield any conclusion other than that it was intended to be a written law, adopted by the supreme authority of the people of the United States and expected to remain effective and in force, according to the plain, original meaning of its words, unless and until it would be amended pursuant to Article V.
Alexander Hamilton said it this way:
“Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it, prior to such an act.”
My successor at Cooley, President Don Leduc, has given me the green light to organize a seminar on Article V as Cooley’s observance of Constitution day in 2010.
I’m looking forward to it.
I want to see us bring together constitutional scholars, legislators, and patriots from all over America to talk seriously about an Article V convention; what it can do; how it would work; why it must be done if our Republic is to be renewed and revitalized.
The seminar is but a small beginning. Because Congress must call the convention, and because Congress fears the convention, Congress will drag its feet and try to find every conceivable excuse to refuse to act.
Only an aroused citizenry can make it happen. I invite the lawyers of Berrien County to think about it, to talk about it. I invite you to visit the FOAVC website at FOAVC.org.
I thank you for the opportunity to share with you my thoughts and my dreams for this great nation.
And America is a great nation, the greatest on earth, the greatest in all of human history. But as I said 42 years ago, a lasting civilization can only be achieved through wise and effective laws, understood and supported by the people.
Eternal vigilance is the price of freedom and protecting the rule of law is a full time job.
And that, ladies and Gentlemen, is what you and I will be doing for the rest of our lives.
Wednesday, October 7, 2009
WE'RE ALL GOING TO DIE
I was sixteen years old when an atomic bomb was dropped on Hiroshima. I remember reading the newspaper accounts with mixed feelings of awe and relief.
My brother Terry was in the navy and was about to ship out from San Francisco to the Pacific Theater of War. The news of Hiroshima was accompanied by speculation that the war would soon be over. Terry would be safe. Terry would come home.
As the months and years went by, the horror of Hiroshima became more familiar. The nuclear age emerged in everyone’s mind and imagination.
As the forties faded into the fifties, the Soviet Union perfected its version of the atom bomb, and the race was on. On both sides of the globe bigger and bigger explosions celebrated the destructive power of the atom as East and West competed in developing nuclear weapons.
John Kennedy bragged that America had enough bombs to wipe out the Soviet Union twice, while the Soviets had only half as many. Nikita Kruschev replied that killing us once would be enough.
It was the era some called the balance of terror. If you nuke us, we’ll nuke you. The threat of retaliation was our only security. The very existence of the human race on planet earth seemed to hang in the balance of an international game of chicken.
I remember many days, when driving back to Detroit from Lansing, feeling the icy grip of fear clutch at my heart as I would see in my mind’s eye an ominous mushroom cloud rising up on the horizon in front of me, signaling that the great city of Detroit and everyone I loved in the world had just been obliterated.
People lived in fear in those days. They dug bomb shelters in the backyard. School children practiced cowering under their desks at the sound of the emergency bell.
The proliferation of nuclear weapons and the dissolution of the Soviet Union have changed the mood. Our challenge is no longer eye ball to eye ball confrontation with a single nuclear rival.
In addition to the United States and Russia, Great Britain, France and China now have nuclear weapons. India, Pakistan and North Korea have also tested atomic bombs, and although they have not publicly confirmed it, Israel is known to have nuclear capability as well.
Retaliation has lost its appeal. If the world has learned anything from the centuries old Middle Eastern warfare between Arabs and Jews it is that retaliation begets retaliation. Blowing up your enemies doesn’t bring your loved ones back to life. It only creates and motivates more enemies.
Anyway, how can you retaliate against an anonymous terrorist attack? How can you retaliate against a suicide bomber? The frustration of 9-11 has been that America, the most powerful nation in the world, cannot extract an eye for an eye, cannot simply obliterate those responsible for the cowardly attack upon our homeland.
Al-Qaeda has no borders. Osama bin Laden has no throne, no castle, no city. President Bush determined to wage a war on terror. But a war on terror is not a real War. It is a slogan, like the war on drugs or the war on poverty.
The invasion of Iraq was excused as a preemptive strike. Saddam Hussein was thought to have weapons of mass destruction. So what? Do we invade every country that has weapons of mass destruction? France? China? Not hardly. No, let’s admit it; we invaded Iraq as a symbolic retaliation for 9-11.
And we went in there with no Congressional declaration of war, and no clear military objective. In the Second World War our objective was clear and simple: Unconditional Surrender. What was our objective in Iraq? Simply to oust Saddam Hussein and replace him with a kinder, friendlier potentate? Was it to force the Iraqi people to adopt a democratic constitution and elect new, more agreeable leaders? Or was it simply to colonize the place and establish an indefinite military presence there?
Didn’t we learn in Viet Nam that you cannot subjugate a hostile indigenous population? Has no one in Washington read about the 700 year troubles in Ireland?
In 2008 we elected a new President. Barack Obama made much of his opposition to the Iraq war, and he endeared himself to the young people who opposed the war, and to the liberals who believed that our commitment to the United Nations barred us from unilateral action against any nation.
Now, after almost a year in office, the President still has troops in Iraq, has increased our military commitment in Afghanistan, and is weighing a military surge against the Taliban and aggressive action in Iran.
Curiously, perhaps because he is their hero, the peaceniks have not taken to the streets to protest Obama’s wars.
I’m 80 years old. The United States has been at war for 31 of those years. I’m sick of it. I thought that when V-J day came and the Great War was over, and the United Nations was organized, we could begin to look forward to an era of peace.
Now we live in terror, not so much of invasion or of rockets fired by enemy nations as we are of a nuclear device being surreptitiously delivered to a major city in an eighteen wheel semi and set off by some suicide bent fanatics.
So what should or what can we do about it?
We can try to accommodate ourselves to life in a code red security envelope, though I can’t see Americans putting up with being stopped at every street corner and asked to show their picture ID.
Or we can just decide it’s a dangerous world and learn to live with it.
We can accept the fact that lightening strikes and rivers flood; that tornadoes and hurricanes, and earthquakes and tsunamis happen.
And that insane human conduct is as much a part of nature as any other disaster.
We’re all going to die. Somehow, some day. Alone or with others.
For some people that realization means eat drink and be merry. Suck up all the pleasure and have all the fun you can beg, borrow or steal. As a friend of mine once said, the one who has the most toys at the end, wins.
For myself, there is the vision of the Pearly Gates. As a guilt ridden Roman Catholic, I have been getting ready all my life.
My brother Terry was in the navy and was about to ship out from San Francisco to the Pacific Theater of War. The news of Hiroshima was accompanied by speculation that the war would soon be over. Terry would be safe. Terry would come home.
As the months and years went by, the horror of Hiroshima became more familiar. The nuclear age emerged in everyone’s mind and imagination.
As the forties faded into the fifties, the Soviet Union perfected its version of the atom bomb, and the race was on. On both sides of the globe bigger and bigger explosions celebrated the destructive power of the atom as East and West competed in developing nuclear weapons.
John Kennedy bragged that America had enough bombs to wipe out the Soviet Union twice, while the Soviets had only half as many. Nikita Kruschev replied that killing us once would be enough.
It was the era some called the balance of terror. If you nuke us, we’ll nuke you. The threat of retaliation was our only security. The very existence of the human race on planet earth seemed to hang in the balance of an international game of chicken.
I remember many days, when driving back to Detroit from Lansing, feeling the icy grip of fear clutch at my heart as I would see in my mind’s eye an ominous mushroom cloud rising up on the horizon in front of me, signaling that the great city of Detroit and everyone I loved in the world had just been obliterated.
People lived in fear in those days. They dug bomb shelters in the backyard. School children practiced cowering under their desks at the sound of the emergency bell.
The proliferation of nuclear weapons and the dissolution of the Soviet Union have changed the mood. Our challenge is no longer eye ball to eye ball confrontation with a single nuclear rival.
In addition to the United States and Russia, Great Britain, France and China now have nuclear weapons. India, Pakistan and North Korea have also tested atomic bombs, and although they have not publicly confirmed it, Israel is known to have nuclear capability as well.
Retaliation has lost its appeal. If the world has learned anything from the centuries old Middle Eastern warfare between Arabs and Jews it is that retaliation begets retaliation. Blowing up your enemies doesn’t bring your loved ones back to life. It only creates and motivates more enemies.
Anyway, how can you retaliate against an anonymous terrorist attack? How can you retaliate against a suicide bomber? The frustration of 9-11 has been that America, the most powerful nation in the world, cannot extract an eye for an eye, cannot simply obliterate those responsible for the cowardly attack upon our homeland.
Al-Qaeda has no borders. Osama bin Laden has no throne, no castle, no city. President Bush determined to wage a war on terror. But a war on terror is not a real War. It is a slogan, like the war on drugs or the war on poverty.
The invasion of Iraq was excused as a preemptive strike. Saddam Hussein was thought to have weapons of mass destruction. So what? Do we invade every country that has weapons of mass destruction? France? China? Not hardly. No, let’s admit it; we invaded Iraq as a symbolic retaliation for 9-11.
And we went in there with no Congressional declaration of war, and no clear military objective. In the Second World War our objective was clear and simple: Unconditional Surrender. What was our objective in Iraq? Simply to oust Saddam Hussein and replace him with a kinder, friendlier potentate? Was it to force the Iraqi people to adopt a democratic constitution and elect new, more agreeable leaders? Or was it simply to colonize the place and establish an indefinite military presence there?
Didn’t we learn in Viet Nam that you cannot subjugate a hostile indigenous population? Has no one in Washington read about the 700 year troubles in Ireland?
In 2008 we elected a new President. Barack Obama made much of his opposition to the Iraq war, and he endeared himself to the young people who opposed the war, and to the liberals who believed that our commitment to the United Nations barred us from unilateral action against any nation.
Now, after almost a year in office, the President still has troops in Iraq, has increased our military commitment in Afghanistan, and is weighing a military surge against the Taliban and aggressive action in Iran.
Curiously, perhaps because he is their hero, the peaceniks have not taken to the streets to protest Obama’s wars.
I’m 80 years old. The United States has been at war for 31 of those years. I’m sick of it. I thought that when V-J day came and the Great War was over, and the United Nations was organized, we could begin to look forward to an era of peace.
Now we live in terror, not so much of invasion or of rockets fired by enemy nations as we are of a nuclear device being surreptitiously delivered to a major city in an eighteen wheel semi and set off by some suicide bent fanatics.
So what should or what can we do about it?
We can try to accommodate ourselves to life in a code red security envelope, though I can’t see Americans putting up with being stopped at every street corner and asked to show their picture ID.
Or we can just decide it’s a dangerous world and learn to live with it.
We can accept the fact that lightening strikes and rivers flood; that tornadoes and hurricanes, and earthquakes and tsunamis happen.
And that insane human conduct is as much a part of nature as any other disaster.
We’re all going to die. Somehow, some day. Alone or with others.
For some people that realization means eat drink and be merry. Suck up all the pleasure and have all the fun you can beg, borrow or steal. As a friend of mine once said, the one who has the most toys at the end, wins.
For myself, there is the vision of the Pearly Gates. As a guilt ridden Roman Catholic, I have been getting ready all my life.
Wednesday, September 2, 2009
RE-WRITING ROE V WADE
I just finished reading a book by Yale Law Professor Jack M. Balkin entitled What Roe v Wade Should Have Said. In it, Professor Balkin and ten of his academic peers from around the country have presented their versions of how Justice Harry Blackman should have explained and justified his controversial pro-abortion decision.
As a former appellate judge and legal educator, I read the tendered alternate opinions with a critical eye.
Not that I’m a fan of Blackman’s opinion. Quite the opposite. Roe v Wade has been picked apart from both the left and the right. It is almost universally seen as a poorly reasoned, poorly crafted apologia for Blackman’s and the Court’s decision to legalize abortion.
So I am tempted to weigh in.
The first lump in the mattress was the United States Supreme Court’s decision to take the case. No one has a right to have their case heard by that august body. At the threshold is a process known as Certiorari.
The Latin word “certiorari” means ‘to be informed of’ or ‘to be made certain of.’ It describes the process by which the Supreme Court decides which cases it will agree to hear. When the Court grants a writ of Certiorari, it in effect says that it wants to become more fully informed about the case. In other words, it agrees to allow the litigants to file briefs and make arguments before the Supreme Court.
The Supreme Court of the United States was created through Article III of the federal constitution. It is given jurisdiction to hear ‘cases and controversies’ arising under the constitution. It was long ago decided, and remains the law today, that the Court has no power to render advisory opinions. It does not, and cannot constitutionally, give legal advice.
The Supreme Court has no power or authority to declare Acts of Congress or laws enacted by state legislatures to be unconstitutional unless it is necessary to do so in order to decide a case or controversy which has been properly brought to the Court.
So much for Con Law 101.
Now come two pregnant ladies in Roe v Wade and Doe v Bolton who claim that the laws of Texas and Georgia respectively have denied them what they claim is a constitutional right: to have their pregnancies terminated by medically administered abortions.
Texas and Georgia object. They point out that both ladies have already delivered their babies; that the children have been received by adoptive parents; that there is no longer any case or controversy between the defendants and the plaintiffs. The matter presented is moot.
Justice Blackman addressed that argument in these words:
"The normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid."
Two points come to mind. First, appellate review is effectively denied in all moot cases. What made these cases different from all those others which the Court refuses to hear because there is no existing case or controversy as required by the Constitution? Isn’t it obvious that the Constitution was intended to deny appellate review where there is no existing case or controversy?
So Harry Blackman thinks the Constitution is too rigid. So what? Who appointed him to amend the Constitution?
Second point. Is it really true that it takes longer to decide a Supreme Court case than it does to have a baby? Doesn’t the Court act in a matter of hours to stay an execution when the Justices think a defendant’s constitutional rights may have been violated? And didn’t the Court find a way to act swiftly in Bush v Gore?
No, Mr. Justice, your argument doesn’t wash. Of course, I can understand why you presented it. Even the most vociferous pro abortion advocates would have been embarrassed if you had simply admitted that your decision was nothing more nor less than outright judicial legislation, justified by you and your colleagues because in your personal opinions the state legislatures were not liberalizing abortion laws fast enough to prevent what some academics were then predicting: a catastrophic population explosion in the twenty-first century.
For better or worse, your draconian solution has been effective. In the past thirty seven years, fifty million Americans were denied the right to be born.
Enough for now. Stay tuned.
As a former appellate judge and legal educator, I read the tendered alternate opinions with a critical eye.
Not that I’m a fan of Blackman’s opinion. Quite the opposite. Roe v Wade has been picked apart from both the left and the right. It is almost universally seen as a poorly reasoned, poorly crafted apologia for Blackman’s and the Court’s decision to legalize abortion.
So I am tempted to weigh in.
The first lump in the mattress was the United States Supreme Court’s decision to take the case. No one has a right to have their case heard by that august body. At the threshold is a process known as Certiorari.
The Latin word “certiorari” means ‘to be informed of’ or ‘to be made certain of.’ It describes the process by which the Supreme Court decides which cases it will agree to hear. When the Court grants a writ of Certiorari, it in effect says that it wants to become more fully informed about the case. In other words, it agrees to allow the litigants to file briefs and make arguments before the Supreme Court.
The Supreme Court of the United States was created through Article III of the federal constitution. It is given jurisdiction to hear ‘cases and controversies’ arising under the constitution. It was long ago decided, and remains the law today, that the Court has no power to render advisory opinions. It does not, and cannot constitutionally, give legal advice.
The Supreme Court has no power or authority to declare Acts of Congress or laws enacted by state legislatures to be unconstitutional unless it is necessary to do so in order to decide a case or controversy which has been properly brought to the Court.
So much for Con Law 101.
Now come two pregnant ladies in Roe v Wade and Doe v Bolton who claim that the laws of Texas and Georgia respectively have denied them what they claim is a constitutional right: to have their pregnancies terminated by medically administered abortions.
Texas and Georgia object. They point out that both ladies have already delivered their babies; that the children have been received by adoptive parents; that there is no longer any case or controversy between the defendants and the plaintiffs. The matter presented is moot.
Justice Blackman addressed that argument in these words:
"The normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid."
Two points come to mind. First, appellate review is effectively denied in all moot cases. What made these cases different from all those others which the Court refuses to hear because there is no existing case or controversy as required by the Constitution? Isn’t it obvious that the Constitution was intended to deny appellate review where there is no existing case or controversy?
So Harry Blackman thinks the Constitution is too rigid. So what? Who appointed him to amend the Constitution?
Second point. Is it really true that it takes longer to decide a Supreme Court case than it does to have a baby? Doesn’t the Court act in a matter of hours to stay an execution when the Justices think a defendant’s constitutional rights may have been violated? And didn’t the Court find a way to act swiftly in Bush v Gore?
No, Mr. Justice, your argument doesn’t wash. Of course, I can understand why you presented it. Even the most vociferous pro abortion advocates would have been embarrassed if you had simply admitted that your decision was nothing more nor less than outright judicial legislation, justified by you and your colleagues because in your personal opinions the state legislatures were not liberalizing abortion laws fast enough to prevent what some academics were then predicting: a catastrophic population explosion in the twenty-first century.
For better or worse, your draconian solution has been effective. In the past thirty seven years, fifty million Americans were denied the right to be born.
Enough for now. Stay tuned.
Saturday, August 15, 2009
WHEN OBAMA WAS TWO
On November 12, 1970, I gave a speech in Miami, Florida to the North American Judges Association. It has a ring of truth for our times. Here it is:
NORTH AMERICAN JUDGES ASSOCIATION
Miami, Florida
November 12, 1970
Remarks by Thomas E. Brennan
Recently, a group of young people in a suburb of Detroit
circulated in a public building interviewing a cross-section of busy Americans.
Stopping men and women at random, the students handed them a
piece of paper, and asked for comment on the words written there.
The words were these:
"...all men are created equal; that they are endowed by their
Creator with certain unalienable rights; that among these are life,liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; and that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness."
The passage, of course, was taken from the Declaration of Independence. Only a bare majority of those interviewed recognized the passage.
A substantial number disagreed with the passage, and branded it dangerous, subversive propaganda.
Our first reaction, naturally enough, is to be mildly amused at this little survey. It seems to demonstrate that many of us have forgotten our history lessons - that our patriotism has lost something of the flag-waving sentimentality it once may have had, and that our young people are being better educated in the fundamentals than we admit.
In other times, our first reaction would be enough. But this is 1970. And in 1970, the word revolutionl is seen as much in newspapers as it is in history books.
We talk about the social revolution, the technological revolution, and about revolutions in fashions and mores and education.
We accept the fact that sudden and dramatic changes are taking place in so many areas of our lives.
And yet, we read with horrified disbelief about the activities of those persons both in the United States and in Canada to whom the word ‘revolution’ is not merely a figure of speech, but who have deliberately chosen a course of criminal rebellion and armed insurrection as a means of effecting political change.
We are horrified because we have always thought of our nations as democracies - responsible to the needs and desires of the people; incapable of tyranny and enjoying the broad support of the great generality of men.
And yet, I wonder sometimes how secure we really are.I wonder if the seeds of discontent are not sewn more profusely than we dare believe.
Our forefathers asserted that free men have an ultimate right of revolution. That sounds queer to us. We've ruled it out. It’s barbaric. It's inhuman. It's immoral. Most of all, it's unnecessary.
We are fond of saying to the young people, to minorities, to the disenchanted “Work within the system - whatever your complaints, they can be rectified - whatever your grievances, they can be solved. Peaceful protest, persuasion, education and the ballot box – these are all the tools you need.
But our forefathers were also wise enough to recognize that governments are instituted among men to protect their God-given unalienable rights to life, liberty and the pursuit of happiness.
It was left to our generation to pronounce that government is designed to achieve happiness for all men. And in that foolish Utopian dream, both young and old; rich
and poor; liberal and conservative have joined hands in our day.
We look to the government to secure our happiness. And we expect others to do the same.
The government must prevent crime. The government must quiet the students. The government must becalm the ghettos, satisfy the teachers, meet the demands of the policemen and firemen. And lower the taxes.
The government must abolish racism. The government must eliminate poverty. The government must heal the sick, feed the hungry, clothe the naked, comfort the afflicted and rehabilitate the criminal.
All around us, men look to the government to secure their happiness.
And all around us, men throw up their hands in frustration because happiness remains elusive and dissatisfaction abides.
My friends, a government which is expected to achieve happiness for its citizens is a government which is destined to fall.
No government is eternal. None is all powerful. None is all wise.
Governments are human institutions, guided by trembling human hands, depending on imperfect human wisdom, speaking through halting human voices.
When people delude themselves into believing that government can answer all their prayers, they make that government their God, and they become its creatures and its slaves.
But wishing that government could be God-like, does not make it so. Sooner or later, the people will realize that it is a false idol, a golden calf, more human than divine, more fallible than infallible, more imperfect than perfect.
And they become disenchanted. They become disillusioned. They become disaffected.
So long as government can bestow bounties upon them, they give it their support - but when its power wanes, when its fortunes are reversed, when its money cheapens, they recognize no further cause for loyalty.
And they see that government as an alien power structure, an impersonal establishment, a yoke to be roughly cast off and thrown aside.
We are a free people in imminent peril of losing our freedom. For too long have our people flirted with the deification of civil government.
For too long have we who are in public service flattered ourselves into thinking that if we studied long enough, if we consulted enough experts, read enough reports, held enough hearings, and attended enough seminars, we could adopt perfect
laws, dispense perfect justice, and achieve a perfect social order, in which all wants would be satisfied, and all men would be happy.
There is still time to see ourselves as we really are. And to tell it like it really is.
Neither the United States of America, nor, I am sure,the Dominion of Canada were ever intended to establish a perfect social order.Our constitutions, our statutes, and our common law were given to us by wise and dedicated, perhaps inspired, men.
Still, they were men. With human emotions, and suspicions. Men burdened with self interest and divided by factions.But they knew something about human nature.
They saw themselves as they really were, and they saw government as it really is, and as it must be seen in the eyes of a free people. Not as their master, but as their servant. Not as a triumph of human creativity; but as a compromise born
of mutual weakness and common necessity. Not as the source of benefactions; but as the guardian of Divine Blessings.
If we see ourselves and each other, as we really are, with our strengths and our weaknesses, with our dashes of foolishness and our doses of common sense, then we can begin again to have faith in ourselves and in our common efforts.
And if we see our government as it really is, and expect it to act accordingly, then we shall realize that a government which does what it is supposed to do, can earn the faith and loyalty of a free people.
For just laws are necessary to the governance of free men.
To establish justice.
To insure domestic tranquility.
To provide for their common defense.
To promote the general welfare.
And to secure the blessings of liberty to themselves and their
posterity.
These are the priorities of government. They are simple and clear.
The power of taxation, the armed might of the people, the right to pass judgment on personal liberty, and to decide the rights and responsibilities of property ownership, these things are entrusted to public officers for the limited terms for which they are elected, and for the limited purpose of carrying on the constitutional functions of civil government.
That means that we who are elected to public office must govern. Not perfectly, but to the best of our abilities. Not for ourselves, nor to serve our own interests, but for the common good.
We must govern, though it be for a time uncomfortable, unpleasant and unpopular. We must decline to use the power of office entrusted to us to promote the welfare of any special interest.
And if anyone among us be so worried about his pension, or his continuation in office that he would place the desires of constituents, the dictates of party, or the hope of favorable public press ahead of the demands of the common good -
Let him hear this.
If we expect the people to have faith in us - If we expect them to believe that given a choice, we will do what is right - Then we must return that faith. And we must realize, that given a choice, the people do not want a government of special privilege.
They want a government of justice.
They do not want public officials who make every decision with a wet finger held to the wind. They want leadership.
Free men do not choose officeholders who coddle their weaknesses, but leaders who appeal to their strength.
Permissiveness in government or in the family, is self destructive. Sooner or later there has to be a confrontation. Sooner or later there comes a time when young people realize that parents who would buy their love at any cost, do not really love them at all. And politicians who would retain the right to govern them at any cost, do not really govern them at all.
For true public leadership, like true family love, is always striving for virtue; building strength for the future, holding out ideals to be sought, suggesting goals to be attained.
All around us, men cry for justice.
And they shall have it, for it is their birthright.
But perfect justice comes only from the Just Creator who waits at the end of our journey through this life.
The justice that we do to each other in the meantime will only be as good as we want it to be, as fair to all of us as it is fair to each of us.
NORTH AMERICAN JUDGES ASSOCIATION
Miami, Florida
November 12, 1970
Remarks by Thomas E. Brennan
Recently, a group of young people in a suburb of Detroit
circulated in a public building interviewing a cross-section of busy Americans.
Stopping men and women at random, the students handed them a
piece of paper, and asked for comment on the words written there.
The words were these:
"...all men are created equal; that they are endowed by their
Creator with certain unalienable rights; that among these are life,liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; and that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness."
The passage, of course, was taken from the Declaration of Independence. Only a bare majority of those interviewed recognized the passage.
A substantial number disagreed with the passage, and branded it dangerous, subversive propaganda.
Our first reaction, naturally enough, is to be mildly amused at this little survey. It seems to demonstrate that many of us have forgotten our history lessons - that our patriotism has lost something of the flag-waving sentimentality it once may have had, and that our young people are being better educated in the fundamentals than we admit.
In other times, our first reaction would be enough. But this is 1970. And in 1970, the word revolutionl is seen as much in newspapers as it is in history books.
We talk about the social revolution, the technological revolution, and about revolutions in fashions and mores and education.
We accept the fact that sudden and dramatic changes are taking place in so many areas of our lives.
And yet, we read with horrified disbelief about the activities of those persons both in the United States and in Canada to whom the word ‘revolution’ is not merely a figure of speech, but who have deliberately chosen a course of criminal rebellion and armed insurrection as a means of effecting political change.
We are horrified because we have always thought of our nations as democracies - responsible to the needs and desires of the people; incapable of tyranny and enjoying the broad support of the great generality of men.
And yet, I wonder sometimes how secure we really are.I wonder if the seeds of discontent are not sewn more profusely than we dare believe.
Our forefathers asserted that free men have an ultimate right of revolution. That sounds queer to us. We've ruled it out. It’s barbaric. It's inhuman. It's immoral. Most of all, it's unnecessary.
We are fond of saying to the young people, to minorities, to the disenchanted “Work within the system - whatever your complaints, they can be rectified - whatever your grievances, they can be solved. Peaceful protest, persuasion, education and the ballot box – these are all the tools you need.
But our forefathers were also wise enough to recognize that governments are instituted among men to protect their God-given unalienable rights to life, liberty and the pursuit of happiness.
It was left to our generation to pronounce that government is designed to achieve happiness for all men. And in that foolish Utopian dream, both young and old; rich
and poor; liberal and conservative have joined hands in our day.
We look to the government to secure our happiness. And we expect others to do the same.
The government must prevent crime. The government must quiet the students. The government must becalm the ghettos, satisfy the teachers, meet the demands of the policemen and firemen. And lower the taxes.
The government must abolish racism. The government must eliminate poverty. The government must heal the sick, feed the hungry, clothe the naked, comfort the afflicted and rehabilitate the criminal.
All around us, men look to the government to secure their happiness.
And all around us, men throw up their hands in frustration because happiness remains elusive and dissatisfaction abides.
My friends, a government which is expected to achieve happiness for its citizens is a government which is destined to fall.
No government is eternal. None is all powerful. None is all wise.
Governments are human institutions, guided by trembling human hands, depending on imperfect human wisdom, speaking through halting human voices.
When people delude themselves into believing that government can answer all their prayers, they make that government their God, and they become its creatures and its slaves.
But wishing that government could be God-like, does not make it so. Sooner or later, the people will realize that it is a false idol, a golden calf, more human than divine, more fallible than infallible, more imperfect than perfect.
And they become disenchanted. They become disillusioned. They become disaffected.
So long as government can bestow bounties upon them, they give it their support - but when its power wanes, when its fortunes are reversed, when its money cheapens, they recognize no further cause for loyalty.
And they see that government as an alien power structure, an impersonal establishment, a yoke to be roughly cast off and thrown aside.
We are a free people in imminent peril of losing our freedom. For too long have our people flirted with the deification of civil government.
For too long have we who are in public service flattered ourselves into thinking that if we studied long enough, if we consulted enough experts, read enough reports, held enough hearings, and attended enough seminars, we could adopt perfect
laws, dispense perfect justice, and achieve a perfect social order, in which all wants would be satisfied, and all men would be happy.
There is still time to see ourselves as we really are. And to tell it like it really is.
Neither the United States of America, nor, I am sure,the Dominion of Canada were ever intended to establish a perfect social order.Our constitutions, our statutes, and our common law were given to us by wise and dedicated, perhaps inspired, men.
Still, they were men. With human emotions, and suspicions. Men burdened with self interest and divided by factions.But they knew something about human nature.
They saw themselves as they really were, and they saw government as it really is, and as it must be seen in the eyes of a free people. Not as their master, but as their servant. Not as a triumph of human creativity; but as a compromise born
of mutual weakness and common necessity. Not as the source of benefactions; but as the guardian of Divine Blessings.
If we see ourselves and each other, as we really are, with our strengths and our weaknesses, with our dashes of foolishness and our doses of common sense, then we can begin again to have faith in ourselves and in our common efforts.
And if we see our government as it really is, and expect it to act accordingly, then we shall realize that a government which does what it is supposed to do, can earn the faith and loyalty of a free people.
For just laws are necessary to the governance of free men.
To establish justice.
To insure domestic tranquility.
To provide for their common defense.
To promote the general welfare.
And to secure the blessings of liberty to themselves and their
posterity.
These are the priorities of government. They are simple and clear.
The power of taxation, the armed might of the people, the right to pass judgment on personal liberty, and to decide the rights and responsibilities of property ownership, these things are entrusted to public officers for the limited terms for which they are elected, and for the limited purpose of carrying on the constitutional functions of civil government.
That means that we who are elected to public office must govern. Not perfectly, but to the best of our abilities. Not for ourselves, nor to serve our own interests, but for the common good.
We must govern, though it be for a time uncomfortable, unpleasant and unpopular. We must decline to use the power of office entrusted to us to promote the welfare of any special interest.
And if anyone among us be so worried about his pension, or his continuation in office that he would place the desires of constituents, the dictates of party, or the hope of favorable public press ahead of the demands of the common good -
Let him hear this.
If we expect the people to have faith in us - If we expect them to believe that given a choice, we will do what is right - Then we must return that faith. And we must realize, that given a choice, the people do not want a government of special privilege.
They want a government of justice.
They do not want public officials who make every decision with a wet finger held to the wind. They want leadership.
Free men do not choose officeholders who coddle their weaknesses, but leaders who appeal to their strength.
Permissiveness in government or in the family, is self destructive. Sooner or later there has to be a confrontation. Sooner or later there comes a time when young people realize that parents who would buy their love at any cost, do not really love them at all. And politicians who would retain the right to govern them at any cost, do not really govern them at all.
For true public leadership, like true family love, is always striving for virtue; building strength for the future, holding out ideals to be sought, suggesting goals to be attained.
All around us, men cry for justice.
And they shall have it, for it is their birthright.
But perfect justice comes only from the Just Creator who waits at the end of our journey through this life.
The justice that we do to each other in the meantime will only be as good as we want it to be, as fair to all of us as it is fair to each of us.
Wednesday, July 22, 2009
TOO MANY DOCTORS?
The air waves crackle with opinions about the crisis in health care. Congress is cranking up to adopt a massive piece of legislation which will purport to make health care better, more affordable, more accessible for all Americans.
I have my doubts.
Thirty five years ago I started a law school amidst a cacophony of complaints by lawyers and laymen alike that there were too many lawyers. The Thomas M. Cooley Law School is now the largest accredited school of law in the United States with 3,700 students on four campuses and over 13,000 alumni throughout the world.
Employment in the legal profession, like employment generally, is in a downturn. We read about major law firms laying off associates and new lawyers having difficulty finding employment. What we don't hear is anyone outside the legal profession complaining that lawyers are being too competitive, and performing their services at too low a cost.
The ample supply of lawyers has lead to competition, advertising, specialization and innovative delivery of legal services.
Just about the kind of things you might expect in a free market.
Now let's take a look at the medical profession.
There is no comparable medical school to the Thomas M. Cooley Law School. Each year over 500,000 applications are filed in American medical schools, while less than 20,000 students are admitted.
Why? Very simply because the Liaison Committee for Medical School Accreditation maintains a hammerlock on admissions. They refuse to permit any medical school to increase its freshman class by more than ten percent or a maximum of 15 students. They oppose the opening of new medical schools and impose such expensive requirements that new schools or expanded schools are not economically feasible.
I have heard a lot of people complain about too many lawyers. I've never heard anyone say there are too many doctors.
Elderly doctors in small towns can't retire because there is no one to take their places. Young Americans go to the Caribbean or Eastern Europe to study medicine, while hospitals in the United States recruit interns from Pakistan and India.
Sub professional health care jobs proliferate. Medical assistants, therapists, and technicians abound while graduates of U.S. medical schools opt for high paying specialties, and leave the nitty gritty of attending to the sick to clinicians.
"Nurse Practitioners" numbering almost 150,000 try to fill the gap. I suspect the vast majority of them would have gone to medical school if the medical schools had opened the door of opportunity. I never met a paralegal who wouldn't rather be a lawyer.
For those who can afford it, the United States offers the finest health care in the world. What we have not done is to allow market forces to regulate the kind and cost of health care below the premier level.
Perhaps if we opened up medical education to all those dedicated young and not so young people who want to enter the medical profession, we might return to the day when the neighborhood doctor's office was up above the hardware store; your family physician knew your name and lived in your neighborhood; and no one expected the national government to pay the doctor's bill.
And Uncle Sam didn't tell you when it was time to think about dying.
I have my doubts.
Thirty five years ago I started a law school amidst a cacophony of complaints by lawyers and laymen alike that there were too many lawyers. The Thomas M. Cooley Law School is now the largest accredited school of law in the United States with 3,700 students on four campuses and over 13,000 alumni throughout the world.
Employment in the legal profession, like employment generally, is in a downturn. We read about major law firms laying off associates and new lawyers having difficulty finding employment. What we don't hear is anyone outside the legal profession complaining that lawyers are being too competitive, and performing their services at too low a cost.
The ample supply of lawyers has lead to competition, advertising, specialization and innovative delivery of legal services.
Just about the kind of things you might expect in a free market.
Now let's take a look at the medical profession.
There is no comparable medical school to the Thomas M. Cooley Law School. Each year over 500,000 applications are filed in American medical schools, while less than 20,000 students are admitted.
Why? Very simply because the Liaison Committee for Medical School Accreditation maintains a hammerlock on admissions. They refuse to permit any medical school to increase its freshman class by more than ten percent or a maximum of 15 students. They oppose the opening of new medical schools and impose such expensive requirements that new schools or expanded schools are not economically feasible.
I have heard a lot of people complain about too many lawyers. I've never heard anyone say there are too many doctors.
Elderly doctors in small towns can't retire because there is no one to take their places. Young Americans go to the Caribbean or Eastern Europe to study medicine, while hospitals in the United States recruit interns from Pakistan and India.
Sub professional health care jobs proliferate. Medical assistants, therapists, and technicians abound while graduates of U.S. medical schools opt for high paying specialties, and leave the nitty gritty of attending to the sick to clinicians.
"Nurse Practitioners" numbering almost 150,000 try to fill the gap. I suspect the vast majority of them would have gone to medical school if the medical schools had opened the door of opportunity. I never met a paralegal who wouldn't rather be a lawyer.
For those who can afford it, the United States offers the finest health care in the world. What we have not done is to allow market forces to regulate the kind and cost of health care below the premier level.
Perhaps if we opened up medical education to all those dedicated young and not so young people who want to enter the medical profession, we might return to the day when the neighborhood doctor's office was up above the hardware store; your family physician knew your name and lived in your neighborhood; and no one expected the national government to pay the doctor's bill.
And Uncle Sam didn't tell you when it was time to think about dying.
Tuesday, July 7, 2009
SUPREME COURT REFORM
I have in hand a letter addressed to Vice President Joseph R. Biden, Attorney General Eric J. Holder Jr. and the leaders of the Judiciary Committees of both Houses of the United States Congress.
The letter is signed by thirty-five law professors and legal scholars. It contains four proposals for legislation by the Congress concerning the United States Supreme Court.
Here are brief summaries:
Proposal One would authorize the President to name an additional Justice to the Court every two years. The nine junior members of the Court would decide the cases. Senior members would continue at full pay and sit only as needed when a sitting justice is recused or ill.
Proposal Two would create a four step procedure to oust a Supreme Court Justice who becomes incapacitated.
Proposal Three would limit the term of the Chief Justice to seven years.
Proposal Four would create a Certiorari Division in the Supreme Court staffed by senior Judges of the United States Courts of Appeals. The Certiorari Division would decide which cases the Supreme Court would hear.
The proposals are not as blatantly political as was Franklin D. Roosevelt’s plan to pack the Court in 1937, but there can be no doubt that the first three proposals would have the net effect of making the Supreme Court more nearly reflect the views of the President of the United States.
In an open letter to law school deans, the proponents describe their proposals and flesh out some of the reasons that have prompted them to advance their ideas.
Undergirding much of the proponents’ initiatives is their concern for judicial superannuation. Supreme Court Justices, they say, live too long, stay on the court too long, become physically or mentally disabled, work less, delegate too much to their clerks, and decide too few cases.
At the same time, some of the professors express concern that the Supreme Court has become a super legislature, making laws which a majority of the Justices feels are in the best interest of the public and justifying their actions by sophistic rationalizations of the constitution.
To some degree, these are related problems. Supreme Court Justices have been known to delay or defer their retirement until after a general election in hopes that a candidate whose opinions they share will be elected.
It is commonplace to describe a given Supreme Court as liberal or conservative. Nose count jurisprudence occupies much of the attention of constitutional scholars and court watchers. How many liberals? How many conservatives? Who are the swing votes?
Almost no one believes that cases are decided in the Supreme Court according to laws and precedents that are dug up through scholarly research. The popular opinion is that the Court’s decisions simply reflect the personal and political preferences of a majority of the Justices.
The view that the constitution is what the Supreme Court says it is prevails in most law school classes, as well as in the popular media.
In short, the United States Supreme Court is generally conceded to be a national oligarchy which rules by fiat.
That fact doesn’t seem to trouble most Americans. Pragmatism is the “ism” of our time; “Gitter done” our national mantra.
Proponents of change don’t much care how it comes about. Presidential proclamation, Congressional enactment, judicial decree, constitutional amendment, and popular referendum are all equally acceptable as long as the result is desired. No doubt a benign and generous military coup would be equally welcomed by many Americans.
In the inner sanctum of appellate courts, the temptation to ‘do good’ hangs in the air like cheap perfume. I remember once telling my colleagues in the Michigan Supreme Court that I doubted we had the authority to take an action under consideration; to which an older justice replied, “If we do it, who is to gainsay us?”
The thirty-five proponents of Supreme Court reform lay claim to being a diverse group of well known legal academics, judges and lawyers. The ‘judges and lawyers’ contingent is minimal. Thirty-one of the thirty-five proponents have email addresses ending in .edu.
A little Googling reveals that the proponents are among the intellectual elite. The Universities with which they are affiliated and from which they have earned degrees; Harvard, Yale, Michigan, Virginia, Texas, Stanford, Duke, Columbia, and Chicago are the same institutions which supply the Supreme Court Justices with most of their law clerks. Indeed these institutions claim as alumni an inordinate percentage of the Justices themselves.
The only problem with the intellectual elite is that they are intellectually elite. They are smarter than most folks and they know they are smarter than most folks. Of them it may be said, with C.S. Lewis:
"Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It may be the better to live under robber barons than under omnipotent moral busybodies. The cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience."
The net result of the academic proposals would be to make the United States Supreme Court younger, more politically attuned, and more productive. They propose nothing to mitigate the power of the Court to issue any kind of edict a majority might agree upon. In fact, revving up the Court would extend its writ at every term.
Whatever checks and balances may exist among the three branches of the national government, there are no similar controls in place to maintain balance between the states and the nation. The rising tide of national power raises all of its constituent boats.
A younger, more vigorous Supreme Court can be expected to bolster the national government at every opportunity.
The notion that self restraint is the only possible limit on the power of the national judiciary assumes that the body politic has no avenue to reassert the vision of the founders.
Our Constitution created a federal republic, not a national democracy and certainly not a national oligarchy.
And the Constitution is still the Supreme Law of the Land.
The letter is signed by thirty-five law professors and legal scholars. It contains four proposals for legislation by the Congress concerning the United States Supreme Court.
Here are brief summaries:
Proposal One would authorize the President to name an additional Justice to the Court every two years. The nine junior members of the Court would decide the cases. Senior members would continue at full pay and sit only as needed when a sitting justice is recused or ill.
Proposal Two would create a four step procedure to oust a Supreme Court Justice who becomes incapacitated.
Proposal Three would limit the term of the Chief Justice to seven years.
Proposal Four would create a Certiorari Division in the Supreme Court staffed by senior Judges of the United States Courts of Appeals. The Certiorari Division would decide which cases the Supreme Court would hear.
The proposals are not as blatantly political as was Franklin D. Roosevelt’s plan to pack the Court in 1937, but there can be no doubt that the first three proposals would have the net effect of making the Supreme Court more nearly reflect the views of the President of the United States.
In an open letter to law school deans, the proponents describe their proposals and flesh out some of the reasons that have prompted them to advance their ideas.
Undergirding much of the proponents’ initiatives is their concern for judicial superannuation. Supreme Court Justices, they say, live too long, stay on the court too long, become physically or mentally disabled, work less, delegate too much to their clerks, and decide too few cases.
At the same time, some of the professors express concern that the Supreme Court has become a super legislature, making laws which a majority of the Justices feels are in the best interest of the public and justifying their actions by sophistic rationalizations of the constitution.
To some degree, these are related problems. Supreme Court Justices have been known to delay or defer their retirement until after a general election in hopes that a candidate whose opinions they share will be elected.
It is commonplace to describe a given Supreme Court as liberal or conservative. Nose count jurisprudence occupies much of the attention of constitutional scholars and court watchers. How many liberals? How many conservatives? Who are the swing votes?
Almost no one believes that cases are decided in the Supreme Court according to laws and precedents that are dug up through scholarly research. The popular opinion is that the Court’s decisions simply reflect the personal and political preferences of a majority of the Justices.
The view that the constitution is what the Supreme Court says it is prevails in most law school classes, as well as in the popular media.
In short, the United States Supreme Court is generally conceded to be a national oligarchy which rules by fiat.
That fact doesn’t seem to trouble most Americans. Pragmatism is the “ism” of our time; “Gitter done” our national mantra.
Proponents of change don’t much care how it comes about. Presidential proclamation, Congressional enactment, judicial decree, constitutional amendment, and popular referendum are all equally acceptable as long as the result is desired. No doubt a benign and generous military coup would be equally welcomed by many Americans.
In the inner sanctum of appellate courts, the temptation to ‘do good’ hangs in the air like cheap perfume. I remember once telling my colleagues in the Michigan Supreme Court that I doubted we had the authority to take an action under consideration; to which an older justice replied, “If we do it, who is to gainsay us?”
The thirty-five proponents of Supreme Court reform lay claim to being a diverse group of well known legal academics, judges and lawyers. The ‘judges and lawyers’ contingent is minimal. Thirty-one of the thirty-five proponents have email addresses ending in .edu.
A little Googling reveals that the proponents are among the intellectual elite. The Universities with which they are affiliated and from which they have earned degrees; Harvard, Yale, Michigan, Virginia, Texas, Stanford, Duke, Columbia, and Chicago are the same institutions which supply the Supreme Court Justices with most of their law clerks. Indeed these institutions claim as alumni an inordinate percentage of the Justices themselves.
The only problem with the intellectual elite is that they are intellectually elite. They are smarter than most folks and they know they are smarter than most folks. Of them it may be said, with C.S. Lewis:
"Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It may be the better to live under robber barons than under omnipotent moral busybodies. The cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience."
The net result of the academic proposals would be to make the United States Supreme Court younger, more politically attuned, and more productive. They propose nothing to mitigate the power of the Court to issue any kind of edict a majority might agree upon. In fact, revving up the Court would extend its writ at every term.
Whatever checks and balances may exist among the three branches of the national government, there are no similar controls in place to maintain balance between the states and the nation. The rising tide of national power raises all of its constituent boats.
A younger, more vigorous Supreme Court can be expected to bolster the national government at every opportunity.
The notion that self restraint is the only possible limit on the power of the national judiciary assumes that the body politic has no avenue to reassert the vision of the founders.
Our Constitution created a federal republic, not a national democracy and certainly not a national oligarchy.
And the Constitution is still the Supreme Law of the Land.
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