PROUD FATHER IN LAW

The Old Judge has occasionally used this blog to brag about his six children, nineteen grandchildren or six great-grandchildren. Today, I want to tip my hat to one of the eight in-laws who also help to populate the Brennan clan; Marybeth’s husband, Jim Hicks. Jim is the Assistant Dean at the Savannah Law School.

Here is what a former student of his, Afghanistan veteran Dan Perez, posted about Jim Hicks on Facebook:

“Let me tell you about this amazing man and what he has done for my life. Back in 2003, he was a "funny guy" law professor of mine. We met during some odd circumstances (I wasn't the most successful in his course during my first semester of law school). However, there was something about this professor at the time that connected us. At the time, I was not sure why. Then in 2004, I deployed to Iraq. For some reason that I could not put my finger on at the time, I would write to him, emails and letters, usually about my difficulties in the war zone or my difficulties with certain "difficult" leaders. He would tell me to push through and continue to do the right thing, and I felt that I was successful. I returned from Iraq and returned to law school, and I thanked him for being an ear to my gripes. Then my struggles with reintegration occurred and after many, many beers, way too many beers and feeling sorry for myself, I flunked out of law school, in what would have been my final year of law school in 2007. During my desperation time, he tried to step in and right my ship for me with words of encouragement, and in the end at the time, pleading with me to slow down and give recovery and integration a chance. Despite my failures, he continued to support me, and over the next 5 years, pushed me, and pushed many, many others to support my readmission into law school, even speaking on the phone, long distance, to my parents. Even when I gave up, he wouldn't give up, and he wrote many letters and made many phone calls and personally addressed many administrators and officials at many meetings, all imploring them to readmit me. Even I gave up on myself ever returning to law school. I completed a deployment to Afghanistan, then earned my MBA, all because I had already given up on law school and working in the legal profession. I charted a different life. But he would not let me go. Upon my return from Afghanistan, 5 years after my academic dismissal from law school, he finally got me back into law school, through way more of his own efforts than any effort on my part. I thought about this today during my train ride into work, into Downtown Chicago, where I work at a large law firm, and earn the equivalent of a 6-figure salary (on an hourly basis). Because of him, more than anyone else, I am here working in Downtown Chicago. Even if I had not initially failed in 2007, and had successfully become a lawyer then, my only dream was to become an attorney in a minority neighborhood on the Southside of Chicago, make a steady salary at a small office, and live happily ever after. I grew up in what, by any standard, would be considered a "ghetto" in Harvey, Illinois. I don't really know anyone that dreamed farther than that lifestyle, and by all accounts, even those small dreams would have been a major success for someone growing up in my situation, and I would have been very happy. But through his pushing, and pushing, and pushing, I eventually started pushing. Now, I sit at this desk, in this high-rise building in downtown Chicago, with a window overlooking an amazingly beautiful and large art sculpture surrounded by Federal Court Buildings, making way more money than I would have ever thought I could, or should, make, with the freedom of coming and going where I please, where the senior lawyers in my office look at my work product and analyses as subject-matter expert work, doing Spanish and Portuguese-language contract analysis on behalf of major worldwide corporate and government clients, I would not be here today if not for one man. Yes, there are many others who supported me throughout life and do so today, and they have helped me overall become a decent man. However, one man's efforts put me here in Downtown Chicago: Law Professor, now Law School Dean Jim Hicks. Thank you for pushing me into success. Thank you for not giving up on me, even when I did.”

And that, My Friends, is what I call a dedicated law professor. Who says the American Dream isn’t alive and well?

MATTHEWS v TRUMP

One of the most significant debates of the 2016 Presidential election took place on March 30, 2016 on the Green Bay campus of the University of Wisconsin. The occasion was the MSNBC broadcast of ‘HARDBALL, with Chris Matthews’ at which Republican candidate Donald Trump was the guest. The issue was abortion, triggered by a question posed by a student.

Here is a link to the video:

http://www.msnbc.com/hardball/watch/trump-s-hazy-stance-on-abortion-punishment-655457859717

Neither Mr. Matthews nor Mr. Trump are educated in the law. Both of them, rather obviously, simply assumed that laws prohibiting abortion somehow punished pregnant women.

They don’t and they never did. Abortion statutes in the United States were essentially extensions of the Hippocratic Oath, written by Hippocrates of Kos, known as the father of modern medicine, who died in the year 370 BC.

The Texas statute, ruled unconstitutional by the Supreme Court in Roe v Wade, provided in Article 1191, for a punishment of two to five years' imprisonment for "any person" who would "procure an abortion" for a pregnant woman by:

1  "designedly administer[ing] ... any drug or medicine"

2  "knowingly procuring] to be administered ... any drug or medicine"

3  using "towards her any violence or means whatever externally or internally applied"

The penalty would double "if it be done without her consent".

Article 1192 set forth accomplice liability for any person who "furnishes the means for procuring an abortion knowing the purpose intended" and Section 1193 provided a fine of $100-$1,000 for a person who engages in means "calculated to produce" an abortion but that fail to do so.

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Article 1194 set forth that, "if the death of the mother is occasioned" by an abortion or attempted abortion, "it is murder" and Article 1196 carved out an exception for an abortion "procured or attempted by medical advice for the purpose of saving the life of the mother."

The Texas statute was typical of State laws. Here is the text of

Michigan Compiled Laws Section 750.14:

Administering drugs, etc., with intent to procure miscarriage—Any person who shall wilfully administer to any pregnant woman any medicine, drug, substance or thing whatever, or shall employ any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, shall be guilty of a felony, and in case the death of such pregnant woman be thereby produced, the offense shall be deemed manslaughter.

If a woman gives birth to an infant and then kills her infant, she commits murder. But there never were criminal laws prohibiting a woman from killing a fetus in her womb, for the simple reason that she could not do so without endangering her own life.

Nature has decreed that a pregnant woman should protect the life of her unborn child by the simple fact that the fetus is a living part of her own body.

Pregnancy is not an illness and a fetus is not a tumor. State laws governing the medical profession require that surgery must be performed for some legitimate therapeutic purpose.

A young man seeking to avoid military conscription could cut off his toes. I don't know that he would be committing a crime. They're his toes, after all. Maybe he just wants to look different at the beach. Like green hair, or a full body tatoo. It would not be a crime.

But a surgeon would endanger his medical license if he cut off a patient’s healthy toes to make him ineligible for the draft or for any silly personal reason, unrelated to therapeutic necessity.

In short, Roe v Wade had nothing to do with a woman’s right to control her own body. It had to do with a doctor’s right to make money by killing babies.

Which is why Mr. Matthews’ church wants to see it overturned.

CONVENTION OF STATES

The Convention of States, COS, is a nationwide effort to induce State Legislatures to ask Congress to call a convention for proposing amendments to the United States Constitution.

Organized by Michael Farris, Chancellor of Patrick Henry University and Mark Meckler, former President of the Tea Party Patriots, the effort has focused on reining in the federal government.

Their goal, of course, is to induce the legislatures of 34 States to join in petitions required by Article V of the U.S. Constitution, requesting a convention. In order to avoid any technical objection, they are seeking to get 34 States to adopt an identically worded resolution.

Obviously, this takes a great deal of effort and coordination. Their strategy has been to recruit citizen activists in every State legislative district, who will bring pressure to bear on their respective legislators.

COS has been active since 2014. To date, they have succeeded in garnering petitions from only five States. At the same time, they now claim to have recruited citizen committees in every state legislative district in the nation.

Recently, in an effort to bolster their cause, COS has sponsored a simulated Constitutional Convention, giving us a peek at the type of assembly they envision coming together to rein in a rogue federal government.

I watched a good deal of the proceedings on video.

Regrettably, I have to say that the simulation did not inspire much confidence in their vision of constitutional reform. The delegates recruited for the simulation were primarily members of various State Legislatures.

The proposals they concocted were essentially directed at giving themselves the power to override federal statutes, administrative rules and court decisions.

I cannot imagine a more disorganized, helter-skelter approach to reining in federal overreach.

The idea that three-fifths of the State Legislatures could reverse a United Sates Supreme Court decision would be laughable if it were not for the fact that there is so much discontent with so many Supreme Court decisions.

Why it would not occur to the organizers of the simulated convention that the problem with Supreme Court decisions is the composition of the Supreme Court, I cannot imagine. I can only lay it to the myopia of legislators who are reluctant to adjust their mindset and think like constitution makers instead of state legislators.

For the first one hundred and thirty years of our nation, the Supreme Court was understood to be the keeper of the Constitution. That protective tradition

ended with the reelection of Franklin Roosevelt in 1936. Frustrated by the refusal of the Court to approve his social and economic agenda, FDR sought to pack the court with his supporters, saying that he wanted “thumping evangelical New Dealers” on the Court.

He got them. Ever since then, Supreme Court appointees have been expected to reflect the political philosophy of the appointing President. The result: an activist, partisan Court, committed to advancing political agendas.

Forty years ago, North Carolina Senator Sam Ervin proposed a plan for a truly non partisan Supreme Court that would, once again, honor its obligation to protect the Constitution from the vicissitudes of political opinion.

Ervin advocated limiting the President’s power of appointment to a list of nominees presented by the Chief Justices of the State Supreme Courts. Ervin, himself a former state supreme court justice, expected that state court judges would protect the states from the encroachment of federal authority.

It certainly is a whole lot more sensible than a long, convoluted constitutional amendment, allowing state legislators to act as a super Supreme Court.

If the hope of the COS leadership was to show, by simulation,  how their notion of an Article V Convention would work, they surely have missed the mark. If anything, they demonstrated that a convention of State Legislators would not be a true Article V amendatory convention.      

TORIES AND WHIGS

My cheerfully liberal friend Al Cannistraro sent me an article from the New York Times, asking for my comment. Always obliging, here it is.

The article details the many tax breaks that Donald Trump has been able to muster in developing his Manhattan real estate empire. NYT estimates the total in the range of $885 million.

No doubt Mr. Trump’s opponents will chuckle over these revelations. Clearly, the New York Times, which is no fan of Donald Trump, fully expects to generate a lot of tongue clucking and finger scraping with its Monumental Disclosure.

Truth is, The Donald has made no secret of the fact that he has gamed the system. Whether it is the bankruptcy laws, the tax laws, the eminent domain laws or the jurisdiction of the civil courts, Trump and his minions have scrambled from the trenches and stormed the economic battlefields of private enterprise without compromise or apology.

Is Washington D.C. a cesspool of corporate lobbying, a cornucopia of cash for eager Congressional campaign committees? Trump has been in the thick of it. He knows how it works because he has worked it. He admits it. Nay, he brags about it.

And he says it is wrong. He says he is a different species of Presidential candidate; an American businessman who says “Been there, done that, and it’s not going to happen on my watch.”

Thomas Jefferson, ruminating in a philosophical mood, once observed that the two party system is dictated by the laws of human nature. Whatever names they may claim, whatever people may call them, the two parties are always the Tories and the Whigs.

The Tories are the incumbents, the power brokers, the insiders, the establishment. They are the ruling class. The folks with the money. The haves. They are the system. City Hall. Downtown. Washington, D.C.

The Whigs are the unconnected. The have nots. The outsiders. The wanna bes. The people. Main Street. The Fly over zone. Business owners, entrepreneurs, workers, the taxpayers, the Silent Majority; the faceless mass of humanity that the Tories manipulate every election year.

If Mr. Jefferson is correct, it is perhaps true that Tories are nothing more than Whigs who managed to get elected. It is certainly true that, human nature being what it is, power is a corrupting influence, and those who come to office pledging to plug loopholes are often not above boring a few new holes themselves.

Surely it would be unduly sanguine to suppose that a sweeping Republican victory in November would inaugurate a new era of spotless integrity in our nation’s capital.

Still, there has to be some comfort in knowing that the man at the head of the GOP ticket doesn’t need the money. He may even take a page from George Washington’s book and decline to accept any compensation.

Whatever. In any case, I take solice in the fact that Donald Trump sees himself as a candidate for President of the United States and not a candidate for Governor of America.

Over the last half century, we have had too many candidates from both major political parties who have offered platforms more suited to a campaign for Governor of a State than Chief Executive of of our national Republic.

I hear Donald Trump saying that education, health and welfare, criminal justice and urban housing are matters that should be addressed in places like  Albany, Lansing, and Sacramento.

The upcoming Presidential debate will present a striking contrast between a veteran insider, who has lived in the White House, served in the Senate and presided over the State Department and a consummate outsider, a novice to public office, whose principal assets are business acumen, patriotism and a determination to make America great again.

We are about to witness a classic collision between the Tories and the Whigs. Hang onto your hat. November is coming.

One People, One God, One Flag.

In Philadelphia, on Wednesday, September 7, 2016, Republican Presidential Candidate Donald J. Trump defined his candidacy in a phrase which deserves to be enshrined in the history of the United States of America.

He urged his supporters to join with their friends and neighbors in uniting our nation as “one people, under one God, saluting one flag.”

That phrase is a mantra putting flesh on the bones of our motto ‘e pluribus unum.’ Trump does not denigrate our diversity. We are white, black, European, Asian, African, Hindu, Buddist, Muslim. That’s the pluribus. Trump doesn't deny it. He simply asks us to maximize, to emphasize, to focus on the unum.

We are one people because we are all Americans. We speak English. We share a history, a political system, a legal system, an economic system.

And we share one God.

I am surprised that the Clintonites, the mainstream media, the minions of political correctness have not jumped all over Trump’s ‘one God’ statement.

Obama famously declared, while speaking on foreign soil, that America is no longer a Christian nation.

Trump clearly puts himself in opposition to Obama’s disavowal. If we are a nation “under one God” what God is it? Whose God is it? Is our God the Great Spirit worshiped by native Americans? Is it the God known as Allah to Nidal Husan and the 9-11 murderers? Is it the impersonal Budda that exists only conceptually in the minds of Tibetan monks?

No indeed. The God enshrined on our currency, the God called upon to witness the truth of testimony in our courts, the God celebrated by Kate Smith when she sang “God Bless America.” is none other than the God of Abraham, the God of Moses, the God of Jesus Christ, the God of George Washington, Abraham Lincoln and Martin Luther King, Jr.

We are one nation under one God because we are a Christian nation. We celebrate Christmas and Easter. We count our days and our years from the birth of Christ. We live by a system of common law founded by Christian judges in England before we became a nation.

When the Founders of our nation wrote in the Northwest Ordinance that “religion, morality and knowledge are necessary for good government and the happiness of mankind” they were talking about the Bible; the summary of Judeo-Christian tradition and belief.

They were talking about the book that enshrines a philosophy of human existence on planet earth as a species of animal life endowed with the spiritual dimensions of intellect and free will that distinguish us from every other form of life.

All through human history there have been people who have risen up to remind us of our destiny as the keepers of the planet; prophets who have called on us to repent; leaders who have urged us to seize the moral high ground; thinkers who have opened our eyes to reality and heroes who have inspired our hearts to embrace the true dimensions of our humanity.

Not all of those people were smart or beautiful, or popular or welcomed. Some were tarred and feathered, some were tortured and martyred, many were ridiculed and scorned. Still others were simply ignored.

Whether Donald J. Trump belongs in that company, I cannot say. His words may very well have been the work product of some anonymous speechwriter who will never be identified.

But the fact is that Donald J. Trump is the one who said those words. He may be ill equipped to explain them, to expand upon their message, to defend their importance to all Americans and to our progeny.

I can only hope that he will try. I can only hope that, flawed as he may be by however he has lived and whatever he may have said or done in the past, he will endorse the full meaning of America as one people, believing in one God and saluting one flag. 

If he brings that kind of a profile to the upcoming Presidential debates, he will not only win the election; he will have started our nation on a course that will restore the American dream of liberty under law, and literally make America Great Again.