WHAT IS IT?

To some folks, it’s a sacred relic.

The original Constitution of the United States is kept in a specially designed exhibit case and vault in the Exhibition Hall of the National Archives Building in Washington, D.C.

Two pages of the Constitution are on display when the Hall is open to visitors; every day of the year except Christmas and New Year’s Day. The other pages are down in the vault except on September 17, when all four pages are brought out in celebration of Constitution Day.

Our federal government goes to a lot of trouble to protect those four pieces of paper.

Each page is encased in a Thermopane envelope filled with helium and a measured amount of water vapor. All the contaminates in the air we breathe are kept out. And nobody can actually touch the pages.

Even the display case has laminated glass filters and a yellow cellulose acetate layer to keep out ultraviolet rays.

That’s not all. Twenty feet below the display case is a vault. It’s 5 feet by 7 and a half feet and it’s six feet deep. The floor and walls are steel and concrete, fifteen inches thick.

There’s an electric mechanism that lowers the display case into the vault and closes a massive lid over it. There’s a stand by device in case of a power failure.

The vault is located in the center of the building, so there are either three or four solid masonry walls on every side, plus five floors and a roof of reinforced concrete above it.

Whenever the Constitution is on exhibit, it is protected by an armed military guard. No flash bulb photographs are allowed.

Bottom line, we the people of the United States have built a shrine to the Constitution. It’s an historical relic. You take the kids there to see it. To whisper and point with awe and reverence.

Just like the Lincoln Memorial, the Washington Monument, the Tomb of the Unknown Soldier. It’s one of the sites to see. A look at history. A peek at the past.

I think it’s wonderful that our federal government is taking such good care of the original constitution. It feeds our need to connect emotionally with the Founders of our nation, and to appreciate what a marvelous thing was done two centuries ago.

But there is a downside.

Treating the charter of our nation with untouchable reverence feeds the notion that it is somehow a divinely inspired pronouncement. Like the ten commandments to be carried around in the Ark of the Covenant, but not otherwise given much attention.

Folks figure that if it’s God’s law, God will enforce it.

And if the Constitution is a one time gift from on high, then it is permanent, complete, perfect and unchangeable. There are no more Washingtons, Madisons, Hamiltons or Franklins and never will be.

But of course everybody knows there are no more twenty dollar jury trials in Federal Court, as required by the seventh amendment, and the two year limit on appropriations for the military set out in Article 1,Section 8 has been swept under the rug.

Because everybody knows that times change. This is the twenty first century. It’s a different world, and it runs on a different set of rules.

The Constitution is protected and revered because it is old. But sooner or later old becomes ancient and ancient becomes archaic. And archaic means it doesn’t really matter anymore.

So the more we love it and honor it, the less we want to think about it or obey it.

Sort of like taking grandma to the home.

HITTING THE BOOKS

It was important for Cooley’s new Law Review to be a credible scholarly publication.

We were the new kid on the block. The non-conforming, anti-establishment professional school with no university affiliation. No cadre of Phd’s. No football team.

The maiden issue of our Law Review, especially the lead article, had to be laden with footnotes, citations of authority, references to recognized authors and their works.

I dug in with determination. Soon my office was piled high with books, strewn with fools cap, and cluttered with three by five cards. I had always needled the faculty about keeping their offices tidy. Now I was another messy professor.

But if I wanted to be scholarly, I was not about to write a speculative work of pure theory. Erudition was not my strong suite. My whole career had been directed toward action.

Mere expository writing didn’t appeal to me. To begin with, I have a very selective memory. People who win trivia competitions amaze me. I remember what is important to me. If it isn’t going to be on the final, forget it.

As a lawyer and a judge, especially as an appellate judge, I wrote to persuade. I analyzed to decide. To my way of thinking, advocacy is the highest and most meaningful form of communication.

Law and politics were both my vocation and my avocation. I had read many of the works of Thomas McIntyre Cooley, the learned 19th century jurist for whom our law school was named. He was a prodigious scholar and writer. His work on constitutional limitations remains on the first rank even today.

Especially today. Cooley wrote about constitutions back in a day when people still understood the legal and political realities associated with adopting the supreme law of the land.

I was appalled, both as a judge and as a legal educator, that one could graduate from college and even from law school in the United States, and never read the 4,543 words that comprise the United States Constitution.

Earlier in my judicial career, I was invited to teach a course in the American Constitution at the University of Detroit. I always began the first day of class by telling the students – they were all juniors and seniors – to take out a piece of paper and write down the Preamble to the U. S. Constitution.

Quite a few of them wrote “We the People…” That’s all. Just “We the People…”

Once in a while, I would get a truly poetic and patriotic essay about justice, equality, and freedom, which, while high sounding and impressive, had no similarity to the actual Preamble.

In the three or four years I taught there only a handful of students got it right.

Constitutional Law is a required course in almost all American law schools, but I doubt that any Con Law professor requires his or her students to read the constitution. The focus is all on Supreme Court cases.

Charles Evans Hughes, a Chief Justice of the United States Supreme Court famously said, “The constitution is what the Supreme Court says it is.” Professor Felix Frankfurter, who later was appointed to the Supreme Court by Franklin D. Roosevelt, went even further. He said. “The Supreme Court is the Constitution.”

In 1949, George Orwell wrote a book called “1984.” It was an imaginative journey into a future decade when advances in science would make human freedom and democracy obsolete.

By 1984, it was coming to pass. We had put a man on the moon. Americans thought government could do anything. They didn’t know or care how things got done. Whether laws were made by Congress, or declared by the Supreme Court, or commanded by the President made no difference.

Just get the job done. Control inflation. Protect the environment. Rev up the economy.

America was becoming a government of men and not of laws. I felt it was time to get back to basics.

SMOKE AND MIRRORS

$14,086,378,714,223.47

That’s what we owed as of February 16, 2011 at 2:08:30 AM.

That’s $45,434.10 for every man, woman and child in the United States.

It’s getting to be a worry. Americans of every political stripe moan and groan on the Internet and elsewhere about the burden of debt. ‘Fourteen trillion dollars’ has become a battle cry. A rallying cry. Even, in some neighborhoods, a call to arms.

One movement it occasions is the thrust for a balanced budget amendment to the federal constitution. The latest version, introduced in the House of Representatives as House Joint Resolution 1 is as follows:

Section 1. Total outlays for any fiscal year shall not exceed total receipts for that fiscal year, unless three-fifths of the whole number of each House of Congress shall provide by law for a specific excess of outlays over receipts by a rollcall vote.

Section 2. The limit on the debt of the United States held by the public shall not be increased, unless three-fifths of the whole number of each House shall provide by law for such an increase by a rollcall vote.

Section 3. Prior to each fiscal year, the President shall transmit to the Congress a proposed budget for the United States Government for that fiscal year in which total outlays do not exceed total receipts.

Section 4. No bill to increase revenue shall become law unless approved by a majority of the whole number of each House by a rollcall vote.

Section 5. The Congress may waive the provisions of this article for any fiscal year in which a declaration of war is in effect. The provisions of this article may be waived for any fiscal year in which the United States is engaged in military conflict which causes an imminent and serious military threat to national security and is so declared by a joint resolution, adopted by a majority of the whole number of each House, which becomes law.

Section 6. The Congress shall enforce and implement this article by appropriate legislation, which may rely on estimates of outlays and receipts.

Section 7. Total receipts shall include all receipts of the United States Government except those derived from borrowing. Total outlays shall include all outlays of the United States Government except for those for repayment of debt principal.

Section 8. This article shall take effect beginning with the later of the second fiscal year beginning after its ratification or the first fiscal year beginning after December 31, 2012

With all due respect for the bona fides of the Congressmen who endorsed this resolution, I must say it does not do what the American people hope will be done. In fact, it has the aura of a smoke screen to cover continued deficit spending by the Congress.

What exactly does it mean, for example, to say that in the President’s proposed budget outlays shall not exceed receipts?

A budget is an estimate, for heaven’s sake. An estimate is an opinion. A guess. A target. A hope. Nay, an estimate is an illusion. When I was a young married man I drew up household budgets every other month. They always balanced, but I never could live by them.

The three fifths vote and the rollcall requirement are window dressing. Forty votes in the House and ten in the Senate are hardly the stuff of constitutional protection.

And how about the exemption for wartime and “threat to national security?”

That language would have nullified their amendment over the last decade, and for how much longer in this dangerous world?

HJ Res 1 only proves what most Americans intuitively know. You don’t leave the fox in charge of the hen house. And you don’t give the job of drafting a balanced budget amendment to the very people who have spent us into 14 trillion dollars worth of trouble and worry.

If war is too serious to be left to the generals, constitutional reform is too important to be left to the politicians.

We need a convention, and we need it now.

MAKING LAW REVIEW

By the early eighties, Thomas M. Cooley Law School was well established. Still, there was much to do. For one thing, we needed a Law Review. All respectable law schools have law reviews.

Making Law Review is the definition of success to many students.

Fortunately, we had a faculty member on board who knew something about starting academic publications. His name was Spencer Abraham. When a student at the Harvard Law School, Spencer had founded the Harvard Journal of Law and Policy. It is still being published and has earned the kind of prestige normally associated with Harvard. Spencer succeeded personally as well. He was eventually elected United States Senator from Michigan.

Spencer agreed to take on the job of faculty moderator. One of his first initiatives was to persuade me to write the inaugural article for the new publication.

I had been away from scholarly writing for a long time. While I had authored many opinions on the Supreme Court, they were not of the truly academic genre. And anyway, even opinion writing was then ten years ago.

I did have an interest, however, which got my juices flowing. Cooley had become a truly national law school. At every welcoming luncheon, I would ask the students from each state to stand and be recognized. There were always more than forty states represented. Realizing that they were part of a truly national class always bolstered the enthusiasm of the freshmen.

Not to mention how satisfying it was for the faculty and the admissions office.

The decade of the 1980’s was a special time in the history of the United States. It was the occasion to celebrate the two hundredth anniversary of the establishment of our nation. Cornwallis’s surrender at Yorktown, the recognition of American independence, and finally, the adoption of the United States Constitution, made the 1780’s a special time in our history.

I conceived of the idea of conducting a convention as contemplated by Article V of the Federal Constitution, and I invited the Student Bar Association to participate.

I told them that if we could enlist the participation of actual registered voters from two-thirds of the states, we would convene and undertake to consider whatever amendments the students might propose.

I rented a huge tent, which enclosed the parking lot next to the administration building on South Grand Avenue. Rented tables and chairs. Had signs made identifying the states.

When the day came, more than two hundred student ‘delegates’ showed up. We had a credentials committee which examined the identification of each attendee, and directed them to the table where their state caucus was ensconced.

Phil Prygoski, our outstanding Con Law professor undertook to deliver the keynote address, whereupon, I took the microphone and tried to steer the assembly through the process of introducing, debating and voting on various proposed constitutional amendments.

It was a great exercise. I was especially touched by some of the personal experiences and backgrounds many of them brought to the table. On some issues, they were predictably liberal. On others, surprisingly traditional. The age and citizenship criteria for election as President were hotly contested, but ultimately not targeted for change.

The mock convention affirmed my determination to focus my law review article on the process of amending the constitution contemplated by Article V.

It would be a labor of love.

It was before I became addicted to word processing on the computer. I took out my lawyer-like yellow foolscap pad and across the top of the first page I scribbled the title.

Return to Philadelphia.

THE ECHO OF MISCHIEF (Number 20)

The evil that men do lives after them; the good is oft interred with their bones.

So said Mark Anthony in Shakespeare’s Julius Ceasar. So it might also be said of Soapy Williams.

Twenty-eight years after Kelley v Riley, another Attorney General, this time a Republican, Bill Schuette, has filed a Quo Warranto proceeding seeking to remove a Michigan Judge.

Kelley sought to remove a woman from a male court. Schuette wants to oust a black judge from a white court.

Here’s the scenario: Hugh Clarke was appointed by outgoing Democratic Governor Jennifer Granholm in the waning days of 2010 to fill a vacancy in the Lansing District Court caused by the resignation of Amy Krause, who was appointed to the Court of Appeals.

Krause had just been reelected in November of 2010 to a term to begin on January 1, 2011.

Clarke’s appointment specified that he is to serve until a successor to Krause is elected. That will be in November of 2012.

Brother Schuette, waving the Kelley v Riley flag says, “No.” He wants the new Republican Governor, Rick Snyder, to appoint a judge for Lansing.

His lawsuit claims that on January 1, 2011, when Judge Krause’s new term of office was to begin, a new vacancy was created. He insists that Judge Clarke ceased to be a judge on that day.

And so, I suppose, the Attorney General will argue that he is not asking the court to remove a judge. Not really. He’ll say he is not really asking the court to do what the constitution forbids. No matter how it looks to everybody.

The problem with that theory is this: if Clarke is not a judge, why do you want him ousted? What is it you want him ousted from?

If Hugh Clarke were truly a stranger to the office of District Judge, a pretender, a squatter, if you will, there would be no need to seek a court order ousting him. The court administrator would tell him to get out. The State Treasurer would take him off the payroll. The lawyers would refuse to appear. The plaintiffs and defendants would go elsewhere or stay home.

If there were, in fact, a new vacancy created on January 1, it would have been filled by the Governor. The new judge would have been put on the payroll. He or she would have donned the robe and started hearing cases.

But the Attorney General knows there is no vacancy. His brief describes Hugh Clarke as a “sitting judge.”

His lawsuit is the common law writ of Quo Warranto, a Latin phrase which means, “By what authority?” The writ is used to inquire into the legal basis for exercising official power.

By definition, Quo Warranto is only used when the respondent is a de facto office holder. You don’t ask someone, “By what authority are you functioning as a judge?” unless the person is actually functioning as a judge.

Frank Kelley referred to the ousting of Dorothy Riley as a “judicially created vacancy.” And that’s exactly what Bill Schuette is trying to do. He wants the court to remove a judge. To create a vacancy. To do exactly what the constitution of Michigan says the court cannot do.

The Michigan constitution provides three ways to remove a judge. He can be impeached. He can be removed for misconduct at the recommendation of the Judicial Tenure Commission, or he can be removed for any other reason by the Governor with consent of two-thirds of both houses of the legislature.

The Supreme Court can’t do it. The Supreme Court should not have done it in 1983.

The Riley case should be assigned to the archives like Dred Scott and Plessy v Ferguson.

And Soapy’s mischief should likewise be undone.

WHAT GOES AROUND (Number 19)

Stick with me on this. It’s confusing, but very interesting.

Under the constitution of 1908, Michigan had eight justices on its Supreme Court. With a solid Republican majority, John Dethmers became the first so called permanent Chief Justice. He was Chief for six years from 1956 to 1962.

In 1962, Thomas (the Mighty) Kavanagh wanted to become Chief. The court was evenly divided. Dethmers stayed on as Chief because there were not five votes to elect someone else.

Finally, to end the deadlock, Paul Adams, a Democrat, broke ranks to vote for Leland Carr, a Republican.

Kavanagh never forgave him, and in the November election supported the Republican, Mike O’Hara, against Adams. In return, O’Hara promised to support Kavanagh for Chief.
O’Hara defeated Adams, and Kavanagh was elected Chief Justice in 1964.

I was elected in 1966, defeating Otis Smith, a Democrat. The court was still eight justices in 1967, evenly split between Republicans and Democrats. Gene Black wanted me to be the Chief, but I declined. He then joined the Republicans to put Dethmers back in the center chair.

In November of 1968 O’Hara and Ted Souris were due to run for reelection. When Souris decided not to run, the constitution of 1963 required that the Court be reduced to seven.

That left O’Hara as the only incumbent on the ballot. He lost to Thomas Giles Kavanagh. Thomas the Good was reelected in 1976 and was alone on the ballot again in 1984.

His opponent was Dorothy Comstock Riley.

Dorothy had good support among members of the Bar, women’s organizations, and of course the Republican Party which nominated her.

The only issue she campaigned on was her qualifications. She had experience, both as a trial judge and on the Court of Appeals.

Still, almost every news conference in cities across the state would eventually turn to the case of Kelley v Riley.

Was she running to seek revenge for being ousted?

What did she think about the Court’s action in that case?

How did she feel about it?

Did she think she could work with Soapy Williams?

Dorothy gave short, evasive answers. She never took the bait. She was determined to travel the high road, conscious that if she won, she would be working every day with men who had rejected her the year before.

Still, there was no way to prevent it. Riley v Kavanagh became a reprise of Kelley v Riley, a referendum on the Court’s ouster of Dorothy Riley.

The response of the people was resounding.

Dorothy Comstock Riley was returned to the Supreme Court.

Thomas the Good was ousted by the voters.

The Michigan constitution of 1963 provides that no person can run for judicial office after their seventieth birthday.

Born in 1911, G. Mennen Williams was ineligible to run for reelection in 1986.

In January, 1987, the Court elected his successor as leader of the court. The vote was unanimous. Three Democrats, three Republicans and Charles Leonard Levin elected the second lady to serve as the Chief justice of Michigan.

Dorothy Comstock Riley.

What goes around, comes around. That’s what they say in politics.

AN ANCIENT WRIT (Number 18)

Somewhere in the dark recesses of my mind I had the notion that there is some kind of a writ that would permit a stranger like me to butt into someone else’s law suit.

A little digging in the law library yielded the writ of Coram Nobis. It’s an ancient common law writ used to correct a fundamental error or miscarriage of justice.

I thought it fit the Riley case.

I prepared an application for a writ of Coram Nobis and filed it in the Supreme Court.

Then I called a news conference.

No doubt the reporters thought I was playing the part of Don Quixote, tilting at windmills, chasing the impossible dream.

One of them finally posed the question. What did I think the Court would do with my request? Did I think they would listen to me? What did I plan to do next?

I told them that I had asked for a chance to address the Court, and I expected to do so at the next scheduled session of the Court, which would be on March 8th.

And if the Court didn’t permit me to speak, what would I do then?

That question gave me a chance to utter a usable sound bite.

“My portrait is hanging in the courtroom,“ I said. “I’ll probably just sit under it until they call on me.”

Actually, it never came to that.

George Bushnell, representing the State Bar of Michigan, was scheduled to argue the first case on March 8, 1983. When Soapy gaveled the Court into session, George stood and asked the court to permit him to yield to me.

They did, and he did, and I had my say.

I began by recounting my exchange of letters with the court clerk, in which I was admonished to avoid personal contact with members of the Court.

I HAVE OBSERVED THOSE REGULATIONS, IF IT PLEASE THE COURT, AND THE JUSTICES HAVE OBSERVED THEM AS WELL.

WE HAVE EVEN AVOIDED THOSE SOCIAL CONTACTS WHICH OUR LONG FRIENDSHIPS – AND I COUNT EACH OF YOU AS MY FRIEND – WOULD OTHERWISE HAVE OCCASIONED, OUT OF CONCERN TO AVOID EVEN THE APPEARANCE OF IMPROPRIETY.

I AM HERE THIS MORNING, IN KEEPING WITH THAT OBJECTIVE, TO PROVIDE AN OPPORTUNITY FOR PROPER, PUBLIC DIALOG ON THE PROPOSITION WHICH I ADVANCED IN MY LETTER.
ARTICLE 6, SECTION 4 OF THE CONSTITUTION STATES: “THE SUPREME COURT SHALL NOT HAVE THE POWER TO REMOVE A JUDGE.”

IT IS MY PROPOSITION THAT SECTION 4 IS UNQUESTIONABLY CONTROLLING IN THIS CASE. THERE IS NO QUESTION THAT JUSTICE RILEY WAS A JUDGE. THERE IS NO QUESTION THAT THIS COURT PURPORTED TO REMOVE HER.

THE PLAIN AND UNAMBIGUOUS MEANING OF SECTION 4 IS SUPPORTED BY THE CONSTITUTIONAL CONVENTION’S ADDRESS TO THE PEOPLE, WHICH STATES THAT THE COURT “*** IS DENIED THE POWER TO REMOVE A JUDGE.”

Then I told the court that I could not imagine any theory or explanation which might weaken or carve out an exception to that plain and simple denial of authority, and concluded by saying,

BUT IF ARICLE 6, SECTION 4 IS TO BE EXPLAINED AWAY, IF THE COURT PLEASE, IT DESERVES A DECENT BURIAL, AND I RESPECTFULLY SUGGEST THAT IF THIS COURT IS GOING TO REMOVE A JUDGE CONTRARY TO THE APPARENT EXPRESS PROHIBITION OF THE CONSTITUTION, IT OWES THE PROFESSION AND THE PUBLIC THE DUTY TO STATE ITS REASONS IN WRITING AND ON THE RECORD.

Soapy stared at me in silence. Like a seven hundred pound gorilla.