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.
Wednesday, September 2, 2009
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.
Saturday, June 13, 2009
GLORY, GLORY, HALLELUJAH
Abraham Lincoln called him ‘a misguided fanatic.’ He has been described as ‘a monomaniacal zealot’ and ‘the father of American terrorism.’
He has also been hailed as ‘one of the most perceptive human beings of his generation’, the man who ‘killed slavery’, and ‘an American who gave his life that millions of other Americans might be free.’
When John Brown was hanged for treason on December 2, 1859, church bells rang throughout the northern states. Revered American poets, Ralph Waldo Emerson and Henry David Thoreau, joined in heaping praise on the man who believed that slavery could only be abolished by bloodshed.
The soul-stirring words and music we know as The Battle Hymn of the Republic descended from a Union soldiers’ marching chant that proclaimed “John Brown’s body lies mouldering in the grave; but his soul goes marching on”
The verdict of history needs long and arduous deliberation.
On Sunday, May 31, 2009, in the foyer of Reformation Lutheran Church in Wichita, Kansas – the state where John Brown emerged as a militant abolitionist –George Tiller, a licensed physician, whose Women’s Health Care Services clinic is one of only a few in the nation which perform abortions after the 21st week of pregnancy, was shot to death by an unknown assailant.
No doubt in the days and months ahead someone will be arrested, and charged with Doctor Tiller’s murder. In the course of bringing the killer to justice, America will be plunged into the most emotional debate of the century.
Some will demand that the accused be tried for a hate crime, ratcheting up the punishment if not diminishing the presumption of innocence. If the accused turns out to be someone who has made anti abortion statements or participated in anti abortion demonstrations, those facts will be introduced in evidence as tending to prove that the accused is guilty of murder.
Others will lionize the accused, calling him a courageous hero who acted to save the lives of countless unborn children.
I am, I believe, among a majority of Americans who will view the event with heart wrenching ambivalence. On the one hand no one can or should condone the murder of Doctor Tiller. No one in this country, not even the most avid pro life activists, will advocate for leniency or clemency for Doctor Tiller’s killer. On the other hand, most Americans do not approve of late term abortions, and even the Supreme Court, in Roe v Wade, held that abortions could be restricted in the third trimester, that is, after 24 weeks of gestation.
So there is a recognition, albeit an ill defined acknowledgement, by most people, that, at some point in time, an unborn child begins to acquire civil rights. The right to be compensated for injuries caused by the negligence of a third party, for example, has long been recognized by our courts. The unborn can inherit property. They can be trust beneficiaries. They can be the subject of custody orders in divorce actions.
The abortion debate is visceral and emotional. It is cast in terms of women’s rights, of religious convictions, of moral judgments, and of personal privacy. It is hard to imagine that there is much common ground or room for compromise between the shrill advocates on both sides.
Still there is a simple constitutional question that must be answered, and answered authoritatively, clearly and finally if there is to be an end to this war of words.
That question is simply this: When does a human being become a “person” within the meaning of the Bill of Rights?
The Fifth Amendment, part of the Bill of Rights, expressly provides that “No person shall … be deprived of life liberty or property without due process of law…”
Clearly a state law which permitted a mother or father or both of them to kill their new born child for a month, a day, or even a minute would violate the civil rights of the baby. Even if the child were a burden. Even if the child were deformed. A person is a person. The Bill of Rights protects us all.
The question is, when does it start protecting us? Is there any basis in reason or human experience to distinguish between a new born infant and a fully developed fetus?
If a new born infant is a person within the meaning of the Bill of Rights; if even a prematurely delivered new born, surviving only on mechanical life support is a person protected by the Fifth Amendment; how can it be said that a viable fetus is not a person, even during labor, even after he or she has, through natural biological changes triggered the mother’s involuntary muscular response and initiated the birthing process.
The judgment of history is impossible to predict. John Brown is now revered as a prophet of civil rights and the provocateur of the Civil War.
Perhaps in the twenty second century it will be said that the murder of Doctor Tiller and the trial of his killer became the catalysts of a national debate which ultimately resolved the gut wrenching issue of abortion in America.
I hope so.
He has also been hailed as ‘one of the most perceptive human beings of his generation’, the man who ‘killed slavery’, and ‘an American who gave his life that millions of other Americans might be free.’
When John Brown was hanged for treason on December 2, 1859, church bells rang throughout the northern states. Revered American poets, Ralph Waldo Emerson and Henry David Thoreau, joined in heaping praise on the man who believed that slavery could only be abolished by bloodshed.
The soul-stirring words and music we know as The Battle Hymn of the Republic descended from a Union soldiers’ marching chant that proclaimed “John Brown’s body lies mouldering in the grave; but his soul goes marching on”
The verdict of history needs long and arduous deliberation.
On Sunday, May 31, 2009, in the foyer of Reformation Lutheran Church in Wichita, Kansas – the state where John Brown emerged as a militant abolitionist –George Tiller, a licensed physician, whose Women’s Health Care Services clinic is one of only a few in the nation which perform abortions after the 21st week of pregnancy, was shot to death by an unknown assailant.
No doubt in the days and months ahead someone will be arrested, and charged with Doctor Tiller’s murder. In the course of bringing the killer to justice, America will be plunged into the most emotional debate of the century.
Some will demand that the accused be tried for a hate crime, ratcheting up the punishment if not diminishing the presumption of innocence. If the accused turns out to be someone who has made anti abortion statements or participated in anti abortion demonstrations, those facts will be introduced in evidence as tending to prove that the accused is guilty of murder.
Others will lionize the accused, calling him a courageous hero who acted to save the lives of countless unborn children.
I am, I believe, among a majority of Americans who will view the event with heart wrenching ambivalence. On the one hand no one can or should condone the murder of Doctor Tiller. No one in this country, not even the most avid pro life activists, will advocate for leniency or clemency for Doctor Tiller’s killer. On the other hand, most Americans do not approve of late term abortions, and even the Supreme Court, in Roe v Wade, held that abortions could be restricted in the third trimester, that is, after 24 weeks of gestation.
So there is a recognition, albeit an ill defined acknowledgement, by most people, that, at some point in time, an unborn child begins to acquire civil rights. The right to be compensated for injuries caused by the negligence of a third party, for example, has long been recognized by our courts. The unborn can inherit property. They can be trust beneficiaries. They can be the subject of custody orders in divorce actions.
The abortion debate is visceral and emotional. It is cast in terms of women’s rights, of religious convictions, of moral judgments, and of personal privacy. It is hard to imagine that there is much common ground or room for compromise between the shrill advocates on both sides.
Still there is a simple constitutional question that must be answered, and answered authoritatively, clearly and finally if there is to be an end to this war of words.
That question is simply this: When does a human being become a “person” within the meaning of the Bill of Rights?
The Fifth Amendment, part of the Bill of Rights, expressly provides that “No person shall … be deprived of life liberty or property without due process of law…”
Clearly a state law which permitted a mother or father or both of them to kill their new born child for a month, a day, or even a minute would violate the civil rights of the baby. Even if the child were a burden. Even if the child were deformed. A person is a person. The Bill of Rights protects us all.
The question is, when does it start protecting us? Is there any basis in reason or human experience to distinguish between a new born infant and a fully developed fetus?
If a new born infant is a person within the meaning of the Bill of Rights; if even a prematurely delivered new born, surviving only on mechanical life support is a person protected by the Fifth Amendment; how can it be said that a viable fetus is not a person, even during labor, even after he or she has, through natural biological changes triggered the mother’s involuntary muscular response and initiated the birthing process.
The judgment of history is impossible to predict. John Brown is now revered as a prophet of civil rights and the provocateur of the Civil War.
Perhaps in the twenty second century it will be said that the murder of Doctor Tiller and the trial of his killer became the catalysts of a national debate which ultimately resolved the gut wrenching issue of abortion in America.
I hope so.
Monday, June 1, 2009
I'M EIGHTY, DAMN IT
I woke up the other morning with a head full of thoughts about our world and our nation and the future, and I found myself mentally making a very passionate speech.
The speech would be full of my opinions. Unvarnished. Unadulterated. Unedited and Uncut. I got to thinking, “Hell, I’m eighty years old. Why can’t I just tell people what I think? Who cares if anybody agrees with me, or if anybody resents what I have to say, or if they write me off as a kook or ridicule me as an anachronistic, arch conservative, homophobic, irrelevant relic of a bygone day.
I’m eighty. I get to say whatever I want to say. Some civilizations revere the opinions of octogenarians. I wouldn’t put the United States of America in the 21st century in that category. The opinion makers in the media put more store in the views of Brittany Spears than those of Tom Brennan.
So be it.
The first thing I want to tell you is that the United States of America is not a democracy. When Mrs. Powel asked Benjamin Franklin whether the Philadelphia convention had created a Republic or a monarchy, he replied, “A Republic, if you can keep it.”
A democracy is ruled by the people. The people are sovereign. There is no law that supersedes the will of the people in a democracy. It is often touted as the rule of the majority, but that’s not always true. Indeed, it is rarely true. Most often the majority are complacent, silent, uninvolved. What passes for the will of the people is the will of those people who are interested, active, determined and successful at acquiring political power. The consent of the governed is more often given by acquiescence than by deliberate covenant.
There is no mention of democracy in the Declaration of Independence or the Constitution, and no responsible American statesman called our nation a democracy for the first hundred years of our history.
In the beginning of the twentieth century, the so called ‘Bull Moose’ or progressive movement brought about the adoption of state constitutional amendments authorizing legislation by initiative and referendum. That excursion into pure democracy has been a mixed blessing. While some salutary statutes and constitutional amendments have been adopted by popular vote, others have soiled the public record with hastily or emotionally adopted provisions, often poorly drafted and fraught with troublesome consequences.
It was Woodrow Wilson who first advanced the notion that our nation is a democracy. He used the term on April 2nd, 1917 when asking the Congress to declare war on Germany. He declared that we must make the world safe for democracy.
Wilson insisted that we had no issue with the German people, only with its unelected Emperor. He said that the Great War was brought about as “in the old, unhappy days when peoples were nowhere consulted by their rulers and wars were provoked and waged in the interest of dynasties or of little groups of ambitious men who were accustomed to use their fellow men as pawns and tools.”
He went on to say that “cunningly contrived schemes of deception and aggression” are “happily impossible where public opinion commands and insists on full information concerning all the nation’s affairs.”
Then he spoke about the “wonderful and heartening” events in Russia where the communist revolution had ousted the Tsar, saying that the Russian people were “democratic at heart.”
The transition from a people’s revolution to a tyrannical dictatorship came quickly in Russia, but it would not have surprised the founders of our nation.
Listen to Samuel Adams: “Democracy never lasts long. It soon wastes, exhausts and murders itself. There never was a democracy that did not commit suicide.”
Here’s Alexander Hamilton: “The ancient democracies in which the people themselves deliberated never possessed one good feature of government. Their very character was tyranny.”
James Madison, who is rightly known as the "Father of the Constitution," wrote in The Federalist, No. 10: "... democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives as they are violent in their deaths."
Perhaps Wilson wasn’t thinking of democracy in the classical, historic sense. In his eyes, a ‘democracy’ was any nation which elected its leaders.
That idea was picked up again 23 years later when Franklin Delano Roosevelt on December 29, 1940, called upon the American people to become the ‘arsenal of democracy.’
Labeling America a democracy in time of war was an effective strategy. The solidarity and sovereignty of public opinion can be the strength of a nation in time of crisis, a self administered ‘little touch of Harry in the night.’
But war time sloganeering is no substitute for rational constitution making.
Our nation was, at its formation, and remains today, a federal republic.
Our Constitution guarantees that every state shall have a republican form of government. That means government not by the people themselves, but by representatives and leaders elected by the people.
In a republic, the people do not decide what is to be done. The people decide who will decide what is to be done.
The government of the United States, created and defined by the Constitution of 1789, is a government of limited, delegated powers. The Executive, Legislative and Judicial branches of the federal government exercise sovereignty only with respect to those objects and powers spelled out in that charter.
The states remain sovereign in all matters not expressly delegated to the United States. That is what the 10th amendment, the last section of the Bill of Rights says.
I happen to believe that the tenth amendment is just as much the law of the land as the first amendment or the second or the fifth.
And the tenth amendment means today just what it meant in 1789 and what it has always meant: that, in domestic matters, the states are sovereign.
If all this sounds as titillating as ‘Civics 101’, let me apply these principles to a few hot button issues of the day.
Let’s start with gay marriage.
I understand that David Boies and Theodore Olson, the lawyers who litigated the infamous case of Bush v Gore are joining forces to ask the federal courts to declare that state laws forbidding same sex marriage violate the fourteenth amendment to the federal constitution.
I suppose those two fellows are pretty smart. They certainly have lots of courtroom experience. But frankly, the idea that the state legislatures which ratified the 14th amendment in 1868 intended to make the laws on their respective state statute books respecting marriage unconstitutional, is absolutely preposterous.
State laws have always specified the conditions for marriage; who can marry, at what age, within what degree of relationship, how a license is to be obtained, who issues it, who can perform the ceremony, what records must be kept and how the marriage can be terminated and under what conditions.
Now I suppose my opinion will win me the label of a homophobe. That’s how the public discourse works in America today. If somebody expresses an opinion you don’t want to hear, you attack that person. Call him or her names. Impugn their motives. Ridicule them. Sneer and holler. Get emotional. Get mad. Get negative. Get vicious.
But like I say, I’m eighty and I don’t give a damn.
The truth is I don’t care a hoot if Vermont allows gay marriage or Tennessee allows siblings to marry at the age of twelve, or Oregon allows assisted suicide or New York allows abortion on demand. These are all things to be decided upon by the duly elected representatives of the people of those states.
What galls me is the festering judicial oligarchy that tolerates and encourages judges, many of who are appointed for life, to make far reaching cultural edicts based on the legal fiction that they are mandates of state and federal constitutions.
Sometimes the judges even have the gall to say that they have decided to issue their dictatorial opinions precisely because the legislature has failed to act!
In other words, if you can’t get legislation through the established processes of republican government, it’s all right to subvert the constitution and ask the judges to do it by judicial fiat.
That sort of end run doesn’t bother most Americans. Pragmatism is the order of the day. “Gitter done” is the mantra. The end is cited as justification for the means.
And anyhow, the means aren’t sexy. The process, the procedure, the rules of the game, are of little interest to people who want to things to be decided in their favor.
Perhaps that is why so many Americans have no concept of how our government works, much less how it is supposed to work. Just watch Jay Lenno go out on the street and ask the folks a few simple questions and you know what I mean.
There’s a TV and radio commercial running these days that begins with the declaration that President Obama has passed such and such a law. Similar statements appear on the Internet. If you were to challenge the sponsor of those ads and point out that it’s the Congress and not the President that passes the laws, I’m sure they would give you a blank stare and say something like “Whatever.”
There is no more pernicious example of judicial usurpation than the infamous Roe v Wade decision of 1972. At the time of that decision, performing an abortion was a criminal offense in every state of the union. There had been some political support for liberalizing those laws in some states, but it was hardly what you would call a ground swell.
The advocates for abortion then and now frame the issue as ‘a woman’s right to choose.’ It sounds very high minded and progressive. Rights are good. Choosing is good.
But the abortion laws never had anything to do with a woman’s right to choose. It never was a crime for a woman to have an abortion or for a woman to attempt to abort a fetus in her womb.
What was outlawed was the action of some other person, whether a medical doctor or someone else, to cause the miscarriage of a pregnant woman. Consent of the pregnant woman was not a defense.
The abortion issue is closely related to the issue of assisted suicide. No doubt the argument will be made, in fact it has been made, that people have a natural right to kill themselves. It will surely be popularized as ‘the elderly’s right to choose.’
The error of this line of thinking is in confusing the power with the right. A woman may have the power to terminate her pregnancy, just as she may have the power to cut off her finger or pluck out her eye. I may have the power to take my own life. But should society confer upon us the right to do those things just because we have the power? And should the community be obligated to let us have help in doing those things to ourselves?
On November 18, 1978, 909 people committed a mass suicide in Jonestown, Guyana. Would anyone argue that the police should not have been permitted to interfere if they had arrived on time?
The regulation of the medical profession, like the regulation of all other occupations, is uniquely a matter of domestic concern and historically has always been reserved to the states under the tenth amendment.
It has always been the case that the prescribing of medications and the performing of surgery are activities for which a state license must be obtained and which must be performed in compliance with state law.
Those laws are made for the health, welfare and safety of the people under what is termed the police power.
Of course the extreme liberal and libertarian view is that the state has no right to tell us what to do, if we are not hurting someone else. Every year we see a defiant parade of motorcyclists wearing no helmets circling the state capital. Of recent days, a national ‘click it or ticket’ campaign has called attention to the fact that failure to fasten a seat belt is a violation of state law.
There are lots of laws enacted to get us to act for our own good.
Police power regulations are uniquely political. They are precisely the kind of laws that belong in the realm of state authority, to be passed or repealed by state officials elected by and answerable to the voters of each state.
While we call ourselves a nation, the United States of America is not a nation in the classic, academic sense. We are not a homogenous, population with a common culture, history, disposition, economy and interest. We are rather the people of fifty different states, with different histories, different temperatures, different natural resources, different geography, different economies, and different cultures and traditions.
Our union was formed in 1789 not by conquest or migration, but by the deliberate, and expressly articulated agreement of representatives chosen by the people in each state. We have lasted and prospered because we are the freest of the free; a land where people can choose not only the weather and the land upon which to build their home, but also the type of community in which they want to live.
The great American experiment in republican government has lasted for nearly a quarter of a millennium. If it falls, if it regresses into mob rule, anarchy and tyranny, it will be because nobody listened to the old guys; nobody cared about our history, or learned about it or understood why we have succeeded thus far.
More than 200 years ago the Frenchman, de Tocqueville, warned that our nation would last only until the people discovered they could vote themselves money from the government treasury.
Perhaps it is the cynicism of old age that prompts me to view the current bailout frenzy as the forerunner of deTocqueville’s prophesy.
I don’t know. But I am eighty years old and next time I am going to trade in my Pontiac for a Ford.
The speech would be full of my opinions. Unvarnished. Unadulterated. Unedited and Uncut. I got to thinking, “Hell, I’m eighty years old. Why can’t I just tell people what I think? Who cares if anybody agrees with me, or if anybody resents what I have to say, or if they write me off as a kook or ridicule me as an anachronistic, arch conservative, homophobic, irrelevant relic of a bygone day.
I’m eighty. I get to say whatever I want to say. Some civilizations revere the opinions of octogenarians. I wouldn’t put the United States of America in the 21st century in that category. The opinion makers in the media put more store in the views of Brittany Spears than those of Tom Brennan.
So be it.
The first thing I want to tell you is that the United States of America is not a democracy. When Mrs. Powel asked Benjamin Franklin whether the Philadelphia convention had created a Republic or a monarchy, he replied, “A Republic, if you can keep it.”
A democracy is ruled by the people. The people are sovereign. There is no law that supersedes the will of the people in a democracy. It is often touted as the rule of the majority, but that’s not always true. Indeed, it is rarely true. Most often the majority are complacent, silent, uninvolved. What passes for the will of the people is the will of those people who are interested, active, determined and successful at acquiring political power. The consent of the governed is more often given by acquiescence than by deliberate covenant.
There is no mention of democracy in the Declaration of Independence or the Constitution, and no responsible American statesman called our nation a democracy for the first hundred years of our history.
In the beginning of the twentieth century, the so called ‘Bull Moose’ or progressive movement brought about the adoption of state constitutional amendments authorizing legislation by initiative and referendum. That excursion into pure democracy has been a mixed blessing. While some salutary statutes and constitutional amendments have been adopted by popular vote, others have soiled the public record with hastily or emotionally adopted provisions, often poorly drafted and fraught with troublesome consequences.
It was Woodrow Wilson who first advanced the notion that our nation is a democracy. He used the term on April 2nd, 1917 when asking the Congress to declare war on Germany. He declared that we must make the world safe for democracy.
Wilson insisted that we had no issue with the German people, only with its unelected Emperor. He said that the Great War was brought about as “in the old, unhappy days when peoples were nowhere consulted by their rulers and wars were provoked and waged in the interest of dynasties or of little groups of ambitious men who were accustomed to use their fellow men as pawns and tools.”
He went on to say that “cunningly contrived schemes of deception and aggression” are “happily impossible where public opinion commands and insists on full information concerning all the nation’s affairs.”
Then he spoke about the “wonderful and heartening” events in Russia where the communist revolution had ousted the Tsar, saying that the Russian people were “democratic at heart.”
The transition from a people’s revolution to a tyrannical dictatorship came quickly in Russia, but it would not have surprised the founders of our nation.
Listen to Samuel Adams: “Democracy never lasts long. It soon wastes, exhausts and murders itself. There never was a democracy that did not commit suicide.”
Here’s Alexander Hamilton: “The ancient democracies in which the people themselves deliberated never possessed one good feature of government. Their very character was tyranny.”
James Madison, who is rightly known as the "Father of the Constitution," wrote in The Federalist, No. 10: "... democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives as they are violent in their deaths."
Perhaps Wilson wasn’t thinking of democracy in the classical, historic sense. In his eyes, a ‘democracy’ was any nation which elected its leaders.
That idea was picked up again 23 years later when Franklin Delano Roosevelt on December 29, 1940, called upon the American people to become the ‘arsenal of democracy.’
Labeling America a democracy in time of war was an effective strategy. The solidarity and sovereignty of public opinion can be the strength of a nation in time of crisis, a self administered ‘little touch of Harry in the night.’
But war time sloganeering is no substitute for rational constitution making.
Our nation was, at its formation, and remains today, a federal republic.
Our Constitution guarantees that every state shall have a republican form of government. That means government not by the people themselves, but by representatives and leaders elected by the people.
In a republic, the people do not decide what is to be done. The people decide who will decide what is to be done.
The government of the United States, created and defined by the Constitution of 1789, is a government of limited, delegated powers. The Executive, Legislative and Judicial branches of the federal government exercise sovereignty only with respect to those objects and powers spelled out in that charter.
The states remain sovereign in all matters not expressly delegated to the United States. That is what the 10th amendment, the last section of the Bill of Rights says.
I happen to believe that the tenth amendment is just as much the law of the land as the first amendment or the second or the fifth.
And the tenth amendment means today just what it meant in 1789 and what it has always meant: that, in domestic matters, the states are sovereign.
If all this sounds as titillating as ‘Civics 101’, let me apply these principles to a few hot button issues of the day.
Let’s start with gay marriage.
I understand that David Boies and Theodore Olson, the lawyers who litigated the infamous case of Bush v Gore are joining forces to ask the federal courts to declare that state laws forbidding same sex marriage violate the fourteenth amendment to the federal constitution.
I suppose those two fellows are pretty smart. They certainly have lots of courtroom experience. But frankly, the idea that the state legislatures which ratified the 14th amendment in 1868 intended to make the laws on their respective state statute books respecting marriage unconstitutional, is absolutely preposterous.
State laws have always specified the conditions for marriage; who can marry, at what age, within what degree of relationship, how a license is to be obtained, who issues it, who can perform the ceremony, what records must be kept and how the marriage can be terminated and under what conditions.
Now I suppose my opinion will win me the label of a homophobe. That’s how the public discourse works in America today. If somebody expresses an opinion you don’t want to hear, you attack that person. Call him or her names. Impugn their motives. Ridicule them. Sneer and holler. Get emotional. Get mad. Get negative. Get vicious.
But like I say, I’m eighty and I don’t give a damn.
The truth is I don’t care a hoot if Vermont allows gay marriage or Tennessee allows siblings to marry at the age of twelve, or Oregon allows assisted suicide or New York allows abortion on demand. These are all things to be decided upon by the duly elected representatives of the people of those states.
What galls me is the festering judicial oligarchy that tolerates and encourages judges, many of who are appointed for life, to make far reaching cultural edicts based on the legal fiction that they are mandates of state and federal constitutions.
Sometimes the judges even have the gall to say that they have decided to issue their dictatorial opinions precisely because the legislature has failed to act!
In other words, if you can’t get legislation through the established processes of republican government, it’s all right to subvert the constitution and ask the judges to do it by judicial fiat.
That sort of end run doesn’t bother most Americans. Pragmatism is the order of the day. “Gitter done” is the mantra. The end is cited as justification for the means.
And anyhow, the means aren’t sexy. The process, the procedure, the rules of the game, are of little interest to people who want to things to be decided in their favor.
Perhaps that is why so many Americans have no concept of how our government works, much less how it is supposed to work. Just watch Jay Lenno go out on the street and ask the folks a few simple questions and you know what I mean.
There’s a TV and radio commercial running these days that begins with the declaration that President Obama has passed such and such a law. Similar statements appear on the Internet. If you were to challenge the sponsor of those ads and point out that it’s the Congress and not the President that passes the laws, I’m sure they would give you a blank stare and say something like “Whatever.”
There is no more pernicious example of judicial usurpation than the infamous Roe v Wade decision of 1972. At the time of that decision, performing an abortion was a criminal offense in every state of the union. There had been some political support for liberalizing those laws in some states, but it was hardly what you would call a ground swell.
The advocates for abortion then and now frame the issue as ‘a woman’s right to choose.’ It sounds very high minded and progressive. Rights are good. Choosing is good.
But the abortion laws never had anything to do with a woman’s right to choose. It never was a crime for a woman to have an abortion or for a woman to attempt to abort a fetus in her womb.
What was outlawed was the action of some other person, whether a medical doctor or someone else, to cause the miscarriage of a pregnant woman. Consent of the pregnant woman was not a defense.
The abortion issue is closely related to the issue of assisted suicide. No doubt the argument will be made, in fact it has been made, that people have a natural right to kill themselves. It will surely be popularized as ‘the elderly’s right to choose.’
The error of this line of thinking is in confusing the power with the right. A woman may have the power to terminate her pregnancy, just as she may have the power to cut off her finger or pluck out her eye. I may have the power to take my own life. But should society confer upon us the right to do those things just because we have the power? And should the community be obligated to let us have help in doing those things to ourselves?
On November 18, 1978, 909 people committed a mass suicide in Jonestown, Guyana. Would anyone argue that the police should not have been permitted to interfere if they had arrived on time?
The regulation of the medical profession, like the regulation of all other occupations, is uniquely a matter of domestic concern and historically has always been reserved to the states under the tenth amendment.
It has always been the case that the prescribing of medications and the performing of surgery are activities for which a state license must be obtained and which must be performed in compliance with state law.
Those laws are made for the health, welfare and safety of the people under what is termed the police power.
Of course the extreme liberal and libertarian view is that the state has no right to tell us what to do, if we are not hurting someone else. Every year we see a defiant parade of motorcyclists wearing no helmets circling the state capital. Of recent days, a national ‘click it or ticket’ campaign has called attention to the fact that failure to fasten a seat belt is a violation of state law.
There are lots of laws enacted to get us to act for our own good.
Police power regulations are uniquely political. They are precisely the kind of laws that belong in the realm of state authority, to be passed or repealed by state officials elected by and answerable to the voters of each state.
While we call ourselves a nation, the United States of America is not a nation in the classic, academic sense. We are not a homogenous, population with a common culture, history, disposition, economy and interest. We are rather the people of fifty different states, with different histories, different temperatures, different natural resources, different geography, different economies, and different cultures and traditions.
Our union was formed in 1789 not by conquest or migration, but by the deliberate, and expressly articulated agreement of representatives chosen by the people in each state. We have lasted and prospered because we are the freest of the free; a land where people can choose not only the weather and the land upon which to build their home, but also the type of community in which they want to live.
The great American experiment in republican government has lasted for nearly a quarter of a millennium. If it falls, if it regresses into mob rule, anarchy and tyranny, it will be because nobody listened to the old guys; nobody cared about our history, or learned about it or understood why we have succeeded thus far.
More than 200 years ago the Frenchman, de Tocqueville, warned that our nation would last only until the people discovered they could vote themselves money from the government treasury.
Perhaps it is the cynicism of old age that prompts me to view the current bailout frenzy as the forerunner of deTocqueville’s prophesy.
I don’t know. But I am eighty years old and next time I am going to trade in my Pontiac for a Ford.
Wednesday, April 29, 2009
SOPHISTRY IN IOWA
I have not studied a Supreme Court opinion in more that 35 years. Even that long ago, I noted a disposition among some justices to reason their way to absurd conclusions.
Varnum v Brien, decided by the Iowa Supreme Court on April 3, 2009, provides a classic example of intellectual versatility. The court concluded that the duly enacted Iowa statute defining marriage as a contract between one man and one woman violates the state constitution's equal protection clause.
To get to its foregone conclusion, the court had to begin by rewriting the statute. The Iowa law said nothing about sexual orientation. The law applies equally to persons of both sexes and of all sexual orientations.
The problem is that the court doesn't seem to know that marriage is a contract; a special kind of contract, one which is affected with the public interest.
The right to make contracts is one of the fundamental freedoms protected by our constitutions. No government permission is required to make a contract to buy a house, or form a partnership, or sell a car. Why do people have to get a license from the government to get married? Because the contract of marriage is affected with the public interest.
Marriage is, at its core, a mating contract. It is the agreement between a man and a woman which enables them to procreate human beings. That's why marriage is so special, so important, so solemn an undertaking. That's why the state regulates marriage, dictates who can marry, at what age, what degrees of consanguinity can marry, what formalities must be observed, how many people one can be married to,and how and why marriages can be dissolved.
The conception of a human being requires an egg from a female and sperm from a male. The DNA of every person is drawn from both parents. Logic, tradition and common sense dictate that both parents should have bonds of affection, responsibility, and dedication with the products of their cohabitation.
Every civilization known to man has had its protocol for marriage. From the most primative tribes to the most sophisticated empires, the natural roles of mothers and fathers are recognized and observed.
Two people of the same sex cannot procreate human beings. They cannot mate. They cannot be mates. It is physically impossible. How then, can they enter into a mating contract? Even the cerebral members of the Iowa Supreme Court cannot make that happen.
What they have done is to redefine marriage by eliminating its core identity as a mating contract. Having asserted that marriage is merely one form of a living arrangement, they then conclude that there is no substantial difference between homosexual and heterosexual unions.
The Iowa decision is another example of permissiveness in high places. If you read the court's opinion, you will see that they were terribly impressed with what nice people the plaintiffs were; school teachers, doctors, lawyers, responsible citizens. And all these nice people want is for the state of Iowa to place it's imprimatur on the form of sexual gratification they prefer.
The courts have already declared laws against sodomy to be unconstitutional. The law allows homosexuals to live together, to adopt children, to leave property to each other, to make any kind of living partnership they prefer. Those incidents are not enough for them. They want their sexual relationship to be equated with that of a man and a woman united in marriage.
Varnum v Brien is an exercise in political correctness which defies logic, common sense, history and the common good. It flies in the face of the will of the people. It is another unhappy example of the black robe syndrome; the mystic infusion of superior wisdom and judgment that is supposed to accompany the installation of judicial officers.
Varnum v Brien, decided by the Iowa Supreme Court on April 3, 2009, provides a classic example of intellectual versatility. The court concluded that the duly enacted Iowa statute defining marriage as a contract between one man and one woman violates the state constitution's equal protection clause.
To get to its foregone conclusion, the court had to begin by rewriting the statute. The Iowa law said nothing about sexual orientation. The law applies equally to persons of both sexes and of all sexual orientations.
The problem is that the court doesn't seem to know that marriage is a contract; a special kind of contract, one which is affected with the public interest.
The right to make contracts is one of the fundamental freedoms protected by our constitutions. No government permission is required to make a contract to buy a house, or form a partnership, or sell a car. Why do people have to get a license from the government to get married? Because the contract of marriage is affected with the public interest.
Marriage is, at its core, a mating contract. It is the agreement between a man and a woman which enables them to procreate human beings. That's why marriage is so special, so important, so solemn an undertaking. That's why the state regulates marriage, dictates who can marry, at what age, what degrees of consanguinity can marry, what formalities must be observed, how many people one can be married to,and how and why marriages can be dissolved.
The conception of a human being requires an egg from a female and sperm from a male. The DNA of every person is drawn from both parents. Logic, tradition and common sense dictate that both parents should have bonds of affection, responsibility, and dedication with the products of their cohabitation.
Every civilization known to man has had its protocol for marriage. From the most primative tribes to the most sophisticated empires, the natural roles of mothers and fathers are recognized and observed.
Two people of the same sex cannot procreate human beings. They cannot mate. They cannot be mates. It is physically impossible. How then, can they enter into a mating contract? Even the cerebral members of the Iowa Supreme Court cannot make that happen.
What they have done is to redefine marriage by eliminating its core identity as a mating contract. Having asserted that marriage is merely one form of a living arrangement, they then conclude that there is no substantial difference between homosexual and heterosexual unions.
The Iowa decision is another example of permissiveness in high places. If you read the court's opinion, you will see that they were terribly impressed with what nice people the plaintiffs were; school teachers, doctors, lawyers, responsible citizens. And all these nice people want is for the state of Iowa to place it's imprimatur on the form of sexual gratification they prefer.
The courts have already declared laws against sodomy to be unconstitutional. The law allows homosexuals to live together, to adopt children, to leave property to each other, to make any kind of living partnership they prefer. Those incidents are not enough for them. They want their sexual relationship to be equated with that of a man and a woman united in marriage.
Varnum v Brien is an exercise in political correctness which defies logic, common sense, history and the common good. It flies in the face of the will of the people. It is another unhappy example of the black robe syndrome; the mystic infusion of superior wisdom and judgment that is supposed to accompany the installation of judicial officers.
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