The
Temple of Karnak is now out of print. However, the complete
manuscript is shown below. It's covered by a
Go to main web page for the work in progress; Trapped in The Temple of Karnak: An Unexpurgated History of the Supreme Court.
THE
How Rogue Judges Have Been
Strangling Your Democracy
by
D. J. Connolly
Plum Creek Book Works
January, 2000
THE
How Rogue Judges Have Been Strangling Your Democracy
by D. J. Connolly
Copyright © D. J. Connolly, 2000.
All rights Reserved. Except for brief quotations from the written text, no part of this book may be reproduced or transmitted in any form or by any means, without written permission from the author.
Published by:
Plum Creek Book Works
e-mail: pcbworks@worldnet.att.net
Internet: http://home.att.net/~pcbworks/TTOK1999A.html
ISBN NUMBER: 0-9673798-0-6
LIBRARY OF CONGRESS CATALOG CARD
NUMBER: 99-95684
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FORWARD
The
temple at Karnak was the largest house of worship in
ancient
The cover art is based on a side view of the main entrance to that building. The background was removed, using photo-editing software, and replaced by a full moon, a shark-filled-moat, and statues of kangaroos.
The
author is a reformed bureaucrat living in
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ACKNOWLEDGMENTS
The author is grateful to the following people who read various drafts of the manuscript and offered helpful comments:
Patricia Anderson
Art Anzic
Cyrus Boudreau
William H. Brown
Lenny Cavallaro
Catherine Connolly
Hank Costello
Mark G. Higgins
The Reverend Philip Lesko
Lee Wilkins
George A. Wise
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TABLE OF CONTENTS
BOOK I: OUR EVOLVING CONSTITUTION
INTRODUCTION 9
CHAPTER 1: THE REIGN OF TERROR 15
CHAPTER 2: COMMON LAW MISCHIEF 21
CHAPTER 3: THE ULTIMATE APHRODISIAC 25
CHAPTER
4: ONE-AND-ONE-HALF CENTS PER
CHAPTER 5: A SCAM IS BORN 39
CHAPTER 6: THE MOTHER OF ALL LOOPHOLES 43
CHAPTER 7: OFF TO SEE THE WIZARD 49
CHAPTER 8: VIKING JURISPRUDENCE 55
CHAPTER 9. JOHN MARSHALL’S PROMISE 63
BOOK II: ACLUISM FOREVER
CHAPTER 10: RIGHT CRIME, WRONG CRIMINAL 71
CHAPTER
11: A NEW
CHAPTER 12: SPIRITUAL AND MORAL GUIDANCE 83
CHAPTER 13. HAVE YOU NOTICED THE NEW ERA? 89
CHAPTER 14: THE GRAND INQUISITOR 93
BOOK III: EQUAL CHILD ABUSE
CHAPTER 15: VIKING JURISPRUDENCE, PART 2 97
CHAPTER 16: THE HOSTAGE THEORY 101
CHAPTER 17: FORTY-SIX FELONS ON THE PAYROLL 105
CHAPTER 18: THREE-BILLION DOLLAR TAJ MAHALS 109
CHAPTER 19: IT’S ALL YOUR FAULT 113
CHAPTER 20: THOROUGH AND INEFFICIENT 119
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BOOK IV: CRUEL AND UNUSUAL CRIME RATES
CHAPTER 21: VIKING JURISPRUDENCE, PART 3 125
CHAPTER 22: THE ROOT CAUSES OF CRIME:
ACTIVIST JUDGES 129
CHAPTER 23: CRUEL AND UNUSUAL PRISONS 137
BOOK V: LIFE AND DEATH IN THE
PRINCIPALITY OF JUDGES
CHAPTER 24: CRUEL, BUT NOT UNUSUAL,
JUDICIAL BUNGLING 143
CHAPTER 25: PENUMBRAS AND EMANATIONS 149
CHAPTER 26: A HIDDEN PAYOFF 155
CHAPTER 27: THE INTEGRITY OF THE COURT 159
BOOK VI: DEMOCRACY ON LIFE SUPPORT
CHAPTER 28: POLITICALLY CORRECT WAYS
TO BRIBE JUDGES 165
CHAPTER 29: THE NEW FEDERALISTS 169
CHAPTER 30 LET’S NOT CALL IT USURPATION 173
CHAPTER
31: ASYLUM ON THE
CHAPTER 32: DESIRABLE POLICY RESULTS 179
CHAPTER 33: AND ALL SHALL BE USURPED 185
NOTES AND CITATIONS 191
APPENDIX:
THE
BIBLIOGRAPHY 239
INDEX 247
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BOOK I
OUR EVOLVING CONSTITUTION
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INTRODUCTION
Imagine
that you live in Plum Creek, a fictitious, medium size town somewhere in the
The referees reacted by announcing some rule changes. From now on, a team only needed thirty-nine and one half inches for a first down. And it had five attempts rather than four, but only if it didn’t try a pass play. Any forward pass would end a series of downs.
People sitting near you in the stands were quite upset about the changes. They were aware that two of the three referees were uncles, and the third a next door neighbor, of East High players. A committee elected by all the coaches in your part of the state had hired the referees. But they had long term contracts. Any attempt to get rid of a biased referee was almost hopeless.
The committee had also written a rule book, and all the coaches had then voted to adopt it. It stated that no rule could be changed without the written approval of three-fourths of the coaches. The book also said, "A first down requires an advance of ten yards or more in no more than four plays." It didn’t say anything about special limits on pass plays.
When irate fans complained, the referees brushed them off. "You don’t understand the rule book,” they said, “it’s a living document which evolves to meet the needs of changing times. Only we can perceive its deeper, subtle meaning.”
You have just read a rough description of U. S. Supreme Court jurisprudence.
THE EVOLVING CONSTITUTION SCAM
Just as we trust football referees to make honest calls, we trust Supreme Court justices to interpret the Constitution. The Constitution didn’t assign them that power. They just claimed it, and we accepted the claim.
However,
they routinely find novel and disturbing material in it that was never put
there by people we elected. So tens of millions of Americans
no longer trust them. You might be surprised to learn that many legal
experts,
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and even judges, admit that the loss of trust is well
deserved. They admit that Supreme Court rulings are often based on partisan
bias. They admit that most of what the Supreme Court now claims to find in the
Constitution was really made up by the justices themselves.
Most
legal experts aren’t distressed by this, they’re pleased. They think that “We
the People” is not competent to elect folks who will enact wise laws. The folks
we elect can take care of minor day to day government functions, but only
courts can be trusted to design the policies that shape the future of our
society.
That’s
the view long held by many American elites. But they know they need a different
story line for the general public. So they tell us that we have a “living”
Constitution which “evolves.” It evolves under the wise and loving guidance of
judges to meet the needs of changing times. Amending it when needed, using the
method our founders set forth in Article V, would be much too unwieldy. It
would also lead to unwise changes driven by the passions of fickle and
intemperate majorities.
That,
in a nutshell, is the evolving Constitution scam. The word “scam” fits because
the metaphor of evolution involves deception. The processes by which courts
“evolve” our Constitution are not at all like the natural processes described
by the theory of evolution.
Now
we’re not going to discuss the philosophical basis of the theory of evolution.
And we’re not going to get into whether or not it’s proven science. For
purposes of this discussion, let’s just agree that it’s been around a long
time, and that most Americans accept its basic elements. That makes it a
politically astute model for one to use, if one is trying to justify stealth
rule by courts. The metaphor of “evolution” makes the process seem natural and
unplanned.
STARE DECISIS
One
can’t understand how the scam works without first understanding “stare decisis,” a concept we inherited from English common
law. According to Black’s Law Dictionary, stare decisis
is a Latin term. It means “to abide by, or adhere to, decided cases.” Most of
the time judges follow, or at least pretend to follow, earlier precedents in
their decisions. They do that for the same reason umpires stick to bad calls.
Defending judicial power is their highest priority.
In
sports, a bad call usually ruins only one play. The rule of stare decisis, however, writes every bad call into the rule
book. It demands that existing rules be replaced by others which legitimize the
bad call. That has some profound consequences which I’ll describe a few
paragraphs below.
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THE THEORY OF EVOLUTION
According
to the theory of evolution, living species slowly disappear and are replaced by
others. Dramatic changes can occur over very long times. For example, some life
scientists believe that modern birds evolved from dinosaurs.1
The
theory depends on two key ideas, “random mutations” and “natural selection.”
Natural selection is just another way of saying “the survival of the fittest.”
Mutations are genetic accidents. The theory of evolution holds that the mutants
occur randomly, that is purely by chance.
In
nature, most mutants are defective in some important way. So they and their
progeny, if any, don’t survive very long. However, according to the theory, a
mutant sometimes comes along that the genetic accident has rendered more fit to survive than its normal brothers and sisters. It
survives and passes on its genes to its offspring. So they also are more fit to survive than their competitors. After many
generations, they’re the only members of their species still around. Nature has
selected, for long term survival, those most fit.2
There
are two big differences between the theory of evolution, as it originated in
the life sciences, and the story line that’s used to justify the “evolving
Constitution.” First, the mutations fathered by judges are not random. A
special interest group conspires to amend our Constitution without obtaining
the consent of the people. The group’s lawyers take their scheme to our
judicial branch of government. In many cases it gets all the way to the U. S.
Supreme Court.
For
various reasons, a majority of the nine people on the Court like the scheme.
Corrupted by their partisan biases, they hand down a decision that defies the
plain meaning of the Constitutional passages they invoke to support it. That
sums up the first difference. Five or more justices give birth to a mutant that
is not “random.” It issues forth from a conspiracy.
The
second difference has to do with the selection process. Stare decisis does
not select, for survival, only those few mutants that are most fit. It selects
them all. Perfectly good parts of our living Constitution get replaced by
strange beings that, in many cases, are much less fit. Our Constitution
“evolves” in bizarre directions. It’s as if all the songbirds became extinct
and were replaced by herds of dinosaurs.
EIGHT THEMES OF THE
Let
me remind you of some obvious political realities. In exercising their power to
appoint judges, presidents have usually picked candidates mainly for their
partisan bias and party connections. Therefore, in the competition for
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high level court seats, integrity has usually been
viewed as a defect rather than a virtue.
This
fact, together with the freedom from external control enjoyed by judges on our
higher courts, has led to a judiciary which becomes more corrupt and despotic
with each passing decade. Its corruption has now reached crisis proportions. That crisis, and the “train of abuses and usurpations” which led to
it, are the subjects of The
The
book has eight main themes which are briefly summarized below.
■ Article
I of the federal Constitution says that only Congress has “legislative power,”
the power to pass laws. Article III says that the role of judges is limited to
deciding “cases” and “controversies.” It says nothing about allowing judges to
make new laws. Article V specifies the only legal process by which our Constitution
can be amended. In spite of these mandates, judges make most of the really
important new laws. And, ignoring Article V, they amend the Constitution
several times each year.
■ It’s been half-a-century since our Supreme Court made a
credible pretense of construing the Constitution in accordance with the intent
of its framers. That gives rise to a dismaying problem. “We the People” have no
say respecting the contents of our Constitution. And those who wrote it had no
say in the matter either. Only judges have a say.
■ Over the course of our history, judicial usurpation of
lawmaking power has led to a mind-boggling list of national catastrophes. Part
of the list appears on the back cover of this book.
■ The practice of following precedents has led to the
“evolution” of a quarter-of-a-million-page counterfeit Constitution which
judges follow rather than the real one.
■ Our judicial branch of government has stolen a role similar
to that of ancient kings and princes. Rogue judges gained despotic power by
using methods found in Machiavelli’s The Prince, the same handbook which
guided Hitler, Mussolini, and Stalin.
■ In flagrant violation of the First Amendment, federal courts
have established a preferred national religion, and restrict our free exercise
of our own religions.
■ A gross excess of judicial power has spawned a large and
perverse judicial usurpation industry which promotes, protects, and feeds upon
it.
■ If our democracy isn’t dead already, it’s on life support.
Outlaw judges have corrupted other government institutions by stealing many of
their most important functions. That, in turn, is a major cause of voter
apathy.
Most
lawyers and intellectuals will tell you the above statements are nonsense. The
laws and the Constitution, which judges are required to follow,
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are subtle and imprecise. So
ordinary citizens shouldn’t expect to understand court rulings. They
must accept the reality that the Constitution is whatever the judges say it is.
A
minority of legal scholars do not agree with that position. They complain, in
books, articles, and court opinions, about how corrupt our legal processes have
become.4 They say judges should honor their
oath to uphold the Constitution. Otherwise, stealth rule by courts will destroy
our democracy.
Legal
scholars have argued both sides of this debate for many years. Those who object
to stealth rule by courts almost always lose. The judges vote in favor of
stealth rule and they have all the clout. Nobody is in a position to keep them
honest.
Most
Americans never have a chance to take part in the debates. The debaters use
obscure legal jargon. And their statements do not receive balanced treatment in
the mainstream media. This book will translate the jargon into plain English.
And it will present the side of the debate one hardly ever hears. You have a
right to know what’s being done to you.
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CHAPTER
1
THE
REIGN OF TERROR
About
four thousand years ago, the Babylonian King, Hammurabi,
gave the world its first written code of laws. A copy was found in
We
were taught in school that Hammurabi's code was one
of the most important social advances in all of history. It was important
because written laws help keep the judges honest. They make it harder to hide
corrupt and biased rulings. We were also taught that
A
likeness of Hammurabi appears on a wall inside the U.
S. Supreme Court building. Supreme Court justices claim him as their
forefather. They proudly cite our written Constitution as the basis of their
authority. They claim to be its faithful servants and they have all taken oaths
to uphold it. However, they violate their oaths with impunity. They’ve been
doing it for more than 200 years.
In
1791, the people added a Bill of Rights to their brand-new Constitution in
order to keep the federal government honest. It was big and far away. Having
just got rid of a tyrannical English government, they feared the new federal
government’s potential to breed domestic tyrants. The ink was hardly dry on the
Bill of Rights when federal judges acted to defy it.
The
First Amendment said, "Congress shall make no law . . . abridging the
freedom of speech, or of the press." During the 1790's, leaders of the
Federalist party, which was then in control, were
losing the public's trust. The people were shifting their loyalty to Thomas
Jefferson's Republican Party.2
The
Federalists decided to silence their critics. They harassed the Republicans by
charging them with libel and slander under English common law. Federalist
judges ran trials so plainly unjust they were comical. The juries were packed
with Federalists, which the judges subjected to angry speeches intended to
inflame anti-Republican passions.
They
refused to admit evidence which showed that the claimed libel was true. They
also refused to allow defense counsel to point out that the First Amendment
protected the criticism in question. A historian, named Bowers, has described
the conduct of federal judges, during the 1790's, as a "reign of
terror."3
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The
people reacted to the reign of terror with dismay and anger. The Federalists
saw their public relations getting even worse. So, in 1798, their majority in
Congress passed the infamous Sedition Act. It provided the cover of statute law
for federal judges to continue persecuting their opponents. The Sedition Act
outlawed written or spoken criticism of government officials. It equated such
speech or writings with treason. It was exactly the sort of law that the First
Amendment was intended to forbid.
Federal
judges then continued their reign of terror under the Sedition Act. They
refused to allow defense lawyers to argue that it violated the First Amendment.
They continued to pack juries and subject their members to angry speeches. In
some cases they even defied the Sedition Act and used the English common law
instead. It permitted harsher penalties and allowed them to operate free of
annoying rules.3
The
most visible offender was a character named Samuel Chase. He subjected juries
to more colorful tirades than did any other judge. I’ll say a lot more about
Chase in Chapter 4.3
The
Federalists had passed the Sedition Act partly because they thought trying
folks for sedition under English common law was the big problem. They thought
an American statute would be more palatable. It didn’t really help. The actions
of Federalist judges continued to appall the people. Short of another
revolution, however, no way could be found to get rid of them. So the people
did the next best thing. In the election in 1800, they got rid of President
John Adams and many Federalists in Congress.
Federalist
judges were still in office, but they felt exposed. Their recent victims now
controlled Congress and the Presidency. So they assumed a lower profile for a
while. The Sedition Act expired and the reign of terror ended. That doesn’t
mean our judicial branch of government reformed. It still defies the Bill of
Rights today.
GOD SAVE THE KING
In
ancient
Contempt
of court is the only crime in
Our
Constitution doesn’t mention contempt of court. It’s a medieval
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English idea. The Constitution does, however, make
clear statements about trial by jury. Our founders did not trust judges with
the power to throw people in jail without the consent of some ordinary
citizens. They wanted to make this point very clear so they said it several
times.
Article
III, Section 2 says in part, "The trial of all Crimes, except in cases of
Impeachment; shall be by Jury.” The Sixth Amendment says in part "In all
criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury." The founders also intended the words
"due process," in the Fifth and Fourteenth Amendments, to include
trial by jury. Rogue judges decided to ignore all that. This practice is
justified under ancient English law, they said. Therefore, it’s OK.
In
early 1996 a
Contempt-of-court
stories are varied and endless. Between 1984 and 1999 seventeen newspaper
reporters were jailed, without jury trials, for refusing to disclose their
sources.5 A judge in
In
the late 1990's, a federal judge sentenced a woman, named Susan McDougal, to
serve eighteen months in jail for contempt of court. She had refused to testify
in certain grand jury proceedings. After the eighteen months were up, they
decided to have a jury trial. The trial, in which Susan was charged with
essentially the same offence, ended in a hung jury.7
In
1988, a federal judge ordered the city council of
■ The city would pay a fine that began at $100 the first day
and doubled every day thereafter. By the end of a month, the cumulative fine
would be about $26 billion. I didn’t compute the total the fine would reach
after two months. However, I can assure you it exceeds the national debt, the
gross national product, and the cost of World War II combined.
■ The uncooperative council members would face fines of only
$500 per day. But they’d go to jail if they didn’t vote right within ten days.
The
federal judge made no mention of a jury trial. However, he claimed
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his order was based on the Constitution. It was unclear
which part he was talking about. It couldn’t have been the part that guarantees
to every state “a republican form of government.” It also couldn’t have been
the Eighth Amendment which forbids “excessive fines.”
An
appeals court upheld the order but capped the fine on the city at a maximum of
$1 million per day after the fifteenth day. The court wasn’t concerned about
the Eighth Amendment or the “republican form of government” guarantee. It said
that $26 billion might violate a judicial “abuse-of-discretion” standard.8
There’s
a subtle message here. Judges don’t need to worry about the Constitution.
That’s a problem for other folks. Judges only need to worry about their
self-imposed “standards.”
THE BOGUS CONSTITUTION
Maybe
the above described news accounts left out some important facts. Maybe the City
of
Of
course, one won’t find many lawyers who admit that the above described judicial
actions are crimes. Jury trials take too long, they’ll say. If judges didn't
have the tools they needed to keep things moving, courts would never get
anything done. Amending the Constitution to fix the problem would be unwieldy. Besides the people might come up with an unwise fix. It’s
better to arrange for a Supreme Court precedent.
Please
pardon a short digression while I explain Supreme Court precedents. By the
middle of 1992 the Supreme Court's published opinions filled 504 volumes. The
last one had 994 pages. Most of the earlier volumes were probably shorter
because printing and bookbinding techniques had improved over time. Let’s
assume the average volume was only about half as long as the last one.9
All 504 volumes, then, would contain about a quarter of a million pages (504 x
500 = 252,000).
The
rules of medieval English law entitle the judges to treat Supreme Court
opinions, which claim to interpret the Constitution, as if they also were part
of the Constitution. The real Constitution gets lost among some
quarter-of-a-million pages of judicial delusion. Do you begin to see why the
judges are so fond of ancient English law?
Now
I’ll get back to contempt of court precedents. The Supreme Court has given us
several. In one case, in the mid 1960's, the Governor and Lieuten-
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ant Governor of Mississippi were charged with criminal
contempt of court. They had failed to obey the orders of a federal judge. Their
lawyers demanded a jury trial. The judge refused and they appealed.10
After
a while, the appeal got to the Supreme Court. It ruled that they had no right
to a trial by jury. A minority wrote that "this was heresy and treason
both to law and justice." However, the majority voted the other way and
the precedent was set.
In
1958, three justices had dissented in a similar case. The majority upheld a
three-year sentence by a district judge for "criminal contempt."
Writing for the dissenters, Hugo Black called this practice "akin to a
despotic power." The majority saw it differently. They voted that the
authors of the Constitution meant to trust judges with despotic power.10
In
the first case described above, the defendants were state officials enforcing
racial segregation. In the other case they were communists. Maybe the Supreme
Court only meant to allow judges to violate the Constitution to punish bad guys!
Hah!
In the mid 1960's, in
That
wouldn’t have worked for them. Had they waited for an appeal to run its course,
they would have been lucky to march by Halloween. They didn’t think that would
have served to get the message out nearly as well as Easter Sunday. So they
marched anyway. Why not? It was their constitutional right.
The
marchers’ lawyer appealed the jail sentence to federal court. In due course
their appeal reached the Supreme Court. All nine justices agreed that the court
order forbidding the march was unconstitutional. However, a majority also ruled
that the contempt order was valid. The Supreme Court wanted to make the point
perfectly clear. Judges are above the law. Judges are above the Constitution.10
ABOVE THE LAW AND THE CONSTITUTION
In
1959, the U. S. Supreme Court heard an appeal of a murder conviction. A fellow
named Vincent Spano had confessed to the police
without a lawyer present.11 The Supreme Court ruled that, due to his
lack of legal counsel, he had been “compelled” to confess. And it ordered that Spano be freed. In the majority opinion, Chief Justice Earl
Warren wrote, "the police must obey the law while enforcing the law."
That
quote suggests an obvious question. How about the judges? Do
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judges have to obey the law too? Or are they above it?
The
The
So
we have the Supreme Court's answer. Medieval English law created an ever
lasting shield for ‘malicious and corrupt’ American judges.
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CHAPTER
2
COMMON
LAW MISCHIEF
You
probably know that much of the law used in American courtrooms came from
English common law. One often wonders, however, why ancient law from a country
run by kings should play such a big role in a modern democracy. This chapter
will shed some light on that question.1
About
900 years ago, in medieval
The
system had a down side. Kings were spending too much of their time hearing
cases. Yet demand for the service still far exceeded the supply. In the twelfth
century, an English king named Henry II decided to make some changes. He
decided to appoint judges to hear cases in his name all over the country. Henry
wrote down a few laws but, for the most part, he gave the judges a fairly free
hand. He told them to avoid stirring up problems and to protect the king's
interests.
In
effect, Henry II’s decision replaced local courts
with an expanded version of the
Now
don’t start thinking of Henry II as a twelfth century George Washington. He was
the early king who had Archbishop Thomas a’ Becket murdered in his own
cathedral.2 You can bet the early common law judges didn’t want
Henry sending somebody around to murder them too. So they paid attention to
"precedent." They watched what happened when another judge handed
down a decision. If the King did not complain, they all took note. In similar
cases they prudently followed the earlier judge's lead. As a result, one could
often predict the outcome of a case by studying the precedents.
Sometimes
there was no precedent. However, a common law judge couldn’t refuse to decide a
case because it wasn’t covered by the law. He needed to guess how the King, who
was the law, would handle it. English common law judges had, in effect,
legislative powers. If no law covered a case, they could just make one up. Whatever
the judge decided would be a precedent in future cases.
In
later years, the nobles placed limits on the power of kings. English
21
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common law then evolved to reflect their needs as well
as those of the King. It gained many enlightened features such as trial by
jury, written charges and rules of procedure. However, it remained a system to
serve those with power. It was also no stranger to bribery. One who hoped to
get justice under that system often needed to pay off a well placed member of
the nobility.1
The
potential of English common law to nourish judicial mischief grew as it became
more complex and diverse. It did not meet the needs of a modern democratic
society. So
English
colonists in
American
judges never saw it that way. They kept using medieval English laws anyway.
English common law was judge-made law. While we were under English control, the
King, or later Parliament, supervised them. So judges never had the last word.
After
the revolution, however, no effective agent of judicial accountability emerged
to replace Parliament. Our new Constitution didn’t contain adequate measures to
control renegade judges. Our founders had assumed that the judiciary would obey
the law. That turned out to be a big mistake.4
The
judges saw an opportunity to exercise unchecked and unaccountable power. They
could tell the people they were interpreting the Constitution, but operate from
English common law, that is judge-made-law, instead. That's exactly what they’ve
been doing for 200 years.
You
can read a more erudite account of common law mischief in the essay by Scalia.5
DOUBLE JEOPARDY IS USUALLY UNCONSTITUTIONAL
Maybe
you find it difficult to believe that federal judges place judge-made law above
the Constitution. Let’s review some fairly recent court rulings concerning
“double jeopardy.” See if you can explain those rulings any other way.
In
1996, in
22
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with a new jury.6
The
defense lawyer then went to federal court. He claimed that starting over with a
new jury subjected his client to "double jeopardy." The federal judge
agreed and ordered the release of the defendant.6
The
double jeopardy language in the Fifth Amendment reads as follows: "nor
shall any person be subject for the same offence to be twice put in jeopardy of
life or limb." The Amendment does not mention any exceptions nor does
any other part of the Constitution. However, it's quite a stretch to claim that
the alleged child rapist had been put in jeopardy even once. He certainly did
not have a trial. Five percent of a trial is more like it. Neither
side presented evidence or called witnesses. The jury gave no verdict.
The judge did not pronounce a sentence. And the mistrial ruling resulted from a
violation of court rules by the defendant's own lawyer.
I
guess we can’t really blame the federal district judge. A year or so later a
federal appeals court blessed his ruling. So it must have been faithful to some
absurd rule that higher ranking judges had adopted. However, that rule was not
really based on the Fifth Amendment. The authors of the Fifth Amendment would
have been astounded at this distortion.
The
extreme solicitude for double jeopardy shown in this case would suggest that
our federal judiciary considers the rule absolute and inviolable. No
exceptions, right?
Well
. . . maybe.
In
1991, a witness videotaped two
The
trial was held in a suburb and the jury was all white. Evidently Koon and Powell had an alert defense lawyer with good
connections. The jury saw the entire tape, not only the parts shown on TV. The
whole tape supported the charge that the cops used excessive force. But it also
supported the defense claim that King was actively resisting arrest. Mr. King
had a very long and colorful criminal record. Hours after the beating he still
had a blood alcohol level well over the legal limit.
The
jurors knew that the city was a dangerous place for cops.
Sure
the verdict was unjust. However, there’s nothing unusual about that. Judges, with or without the help of juries, turn loose much more
dangerous guilty parties every day of the week. And
23
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firing them. One does expect, however, that the judges
would obey the Constitution. It doesn’t allow them to try those fellows a
second time. A judge and jury had tried them for a criminal “offence.” The
trial had run its full course. The jury had said "not guilty," so
they couldn’t be tried again for the same “offence.”
Politics,
however, called for some special treatment. Mr. King’s supporters held the
mother of all riots. They killed fifty-four people and injured about 2400. They
looted and wrecked hundreds of businesses, setting over 500 fires and doing about
one billion dollars worth of damage. The National Guard and U. S. Army had to
help restore order.8
Liberal
politicians and journalists demanded action to appease the street mob. The
judges looked around in their bag of tricks and found some stretch in the
Constitution. They held a second trial, this time in federal court. No effort
was spared to make sure that this trial would have a different outcome. They
picked a jury from among the neighbors of the rioters. Nobody mentioned double
jeopardy. Government lawyers, no doubt, found Supreme Court precedents to
justify the second trial.
The
second criminal trial of Koon and Powell “for the
same offence” had a different outcome. The jury said “guilty” and the judge
imposed a long sentence.
For
several years afterwards, Rodney King kept popping up in the news. He sued the
city of
24
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CHAPTER
3
THE
ULTIMATE APHRODISIAC
Back
in 1989, the Supreme Court declared that the Constitution bars any law against
burning the American flag.1 The Court said that flag burning was
“expressive conduct” protected by the First and Fourteenth Amendments. You can
give that ruling a sanity check by reading both Amendments in the Appendix. You
won’t find anything about flag burning in either one. You won’t find anything
about expressive conduct either. Of course the judges in 1989 were well aware
of that.
Therefore,
they must have found some other reliable evidence that elected representatives
of the people, back when the two Amendments were added to the Constitution,
intended them as a license for future judges to use to protect flag burning. If
you believe that I’ve got a bridge to sell you.
The
people who adopted the First Amendment had survived the Revolutionary War.
Patriotic fever was running high. They would have made quick work of anyone who
publicly burned the flag their brothers had just died to protect. They also had
a high degree of mistrust for federal judges. They showed that when they passed
the Eleventh Amendment in 1795. That subject is discussed in the next chapter.
The
Fourteenth Amendment was adopted right after the Civil War. Let’s not forget
how the Civil War began? As you’ll learn in Chapter 5, a corrupt Supreme Court
ruling helped set the stage. Then confederate forces fired on the American flag
at
According
to The American Legion, five Supreme Court rulings prior to 1989 upheld the
people’s right to protect the flag from public gestures of disrespect. For more than 100 years, the federal government, and as many as
forty-nine states, had laws to do just that. Polls in the 1990's
indicated that 80 percent of the American people wanted to retain those laws.2
Nevertheless, federal judges suddenly discovered protection for flag burning in
the Bill of Rights in 1989. Can you imagine a more blatant fraud than that?
For
several years, conservatives in Congress pushed a proposed constitutional
amendment to nullify the 1989 ruling. Liberals in the media ridiculed them for
wasting time on it. At this writing, the amendment has not been adopted. It
failed in the Senate in 1995. Most
All
of this has the makings of a comic opera. Our Constitution says that amendments
to it must originate in Congress or in a constitutional convention.
25
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Judges ignored that provision and amended the Constitution to protect flag
burning. Congress has tried, so far without success, to amend it back to the
way it was for 200 years, the way the people still want it. Are you sure you
live in a republic?
I’m
well aware that many thoughtful people are among the 20 percent who think the
Constitution ought to protect expressive conduct as long as it’s not violent or
damaging to the rights of others. Many thoughtful people also applaud other
examples of judges placing enlightened amendments in the Constitution. They’re all
in for a nasty disappointment. Sooner or later judges will amend the
Constitution in ways they detest. Our Supreme Court acts as a royal council
rather than an impartial court of law. A royal council will change course
whenever it thinks best.
THE PRINCE
Let’s
explore how and why the Court became a royal council. In the last chapter, we
were reminded that English common law judges represented the King. After the
Revolution,
Of
course American judges, even those on the Supreme Court, don’t exactly think of
themselves as kings. Who ever heard of a country with nine kings? Supreme Court
insiders think of the justices, not as kings, but as princes and princesses.
You can confirm that by checking the book, Closed Chambers, by Edward
Lazarus. Lazarus was a Supreme Court clerk in 1988 and 1989. So he knows how
Court insiders think. Lazarus described the Justices as “seven princes and two
princesses sharing a single castle.”3 In a country with no king,
princes and princesses have a lot of power.
For
those in a position to steal that kind of power, the temptation is hard to
resist. Henry Kissinger once said that power was the “ultimate aphrodisiac.”4
For federal judges, especially those on the Supreme Court, awesome power is
within reach. To grasp it requires that one lie to others and, perhaps, to
oneself. However, the risk is small.
For
nearly five centuries, those who lusted for power have studied a famous book
entitled The Prince. Niccolo Machiavelli, an
Italian bureaucrat, wrote it around the time of Shakespeare. Critics have
called it "a blueprint for dictators.” In The Prince, Machiavelli
did not concern himself with right and wrong. His only concern was power. As a
result, his book came to be viewed as evil. Experts who have studied the
history of Machiavelli’s book claim that a common name for the devil, "Old
Nick," was derived from the author’s first
26
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name, Niccolo.5
They
also claim that the world’s most evil dictators studied The Prince. The
Fascist leader, Mussolini, wrote a doctor's thesis on it. Hitler kept a copy by
his bedside. Lenin and Stalin studied it as well.5
Those
who lust for power study The Prince. That has long been a constant of
the history of politics. For two centuries, American judges have schemed to
grasp ever increasing power. So they have certainly studied it too. Judicial
actions consistently show mastery of its lessons. That idea is a theme of this
book.
THE FIRST GREAT PRINCE OF USURPATION
Between
1790, when the Supreme Court opened for business, and 1801, it had two Chief
Justices. That does not include one who served briefly under an interim
appointment. It also does not include one who took the job briefly but then
withdrew. In the first few years a Supreme Court seat was an unattractive job.
The justices had to spend about half the year on the road. Six of them covered
the whole country, traveling on circuit duties.
In
addition, the work wasn't the least bit uplifting. The real action was in
Congress or in the President’s cabinet. Those jobs allowed one to do exciting
things. One could help launch a new nation. As a judge you spent your entire
work life dealing with people at their worst. You had the onerous duty of
deciding "cases" and "controversies." That's what it said
in the Constitution.
Consequently, men with better options did not
want to serve on the Court.
Beginning in 1801, a Federalist named John
Marshall changed all that.
During
our nation’s first decade, members of the Federalist party
dominated the federal government. They had played a leading role at its birth.
They had good ideas and good political skills. So Federalists supplied our
first two Presidents and had early majorities in Congress. George Washington,
our first President, was a nominal Federalist. His style, however, was really
that of a centrist. He had good men from both parties in his cabinet.
The
next President was John Adams, a true Federalist. Adams didn't do nearly as
well as
The
best-known Federalist thinker was Alexander Hamilton. They say that
After
27
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in trouble. They found it a little too easy to resort
to tyranny. So the voters kicked them out in 1800. The people had gone to a lot
of trouble to get free of English tyrants. They were not about to accept a
home-grown version of the same evil. Thomas Jefferson and the Republicans
replaced Adams and the Federalists.
Before
leaving, in early 1801, the Federalists took their revenge on the people. They
appointed John Marshall as Chief Justice of the Supreme Court. They also packed
the lower courts, hoping that their judges, under
In
In
one area, John Marshall found Machiavelli’s advice a little bit ambiguous. The
Prince taught that every tyrant should try to avoid angering either the
people or the nobility. You had to do what you had to do, but getting the
people mad at you was always dangerous. There were a lot more common people out
there than there were members of any other group. However,
most of the time you could fool them. They weren’t very well educated.
They were unorganized, and they were too busy working to pay much attention to
what you were doing.
The
nobles, on the other hand, paid close attention. And they had demands they
expected you to meet. They would plot to destroy you if you didn’t play ball.
Old
Nick admitted that the people were more deserving of the government’s loyalty
than were the “great ones” whose designs were “fixed on commanding and
oppressing altogether.” The people hoped only to avoid being oppressed or, as
Machiavelli put it, “only to defend and secure themselves.”
However, none of that mattered. The point of being a prince was to gain and
hold power.10
28
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Of
course the America of Marshall’s time did not have nobility of exactly the same
type as did medieval
Do
you remember the Robin Hood stories? They had two main villains; the Sheriff of
Nottingham and King John. John was the little brother of beloved King Richard
the Lion Hearted. Richard spent most of his adult life fighting in the
Crusades, so John got to act in his place and eventually became king himself.
King
John ruled
The
nobility was another matter. In 1215 AD, a group representing most of the
English barons made John an offer he couldn’t refuse. He could avoid a civil
war he was sure to lose by signing the Magna Carta,
or “Great Charter,” a contract which greatly restricted his power. John
accepted the offer at a place called
This
historical episode offered a clear lesson to John Marshall. Most
of the time it’s more dangerous for a tyrant to anger the nobility than the
people.
Let
me describe, for example, his rationale for “judicial review” of laws passed by
Congress or the states. First he pointed out that, in
Some
cases raised issues the judges had to resolve by consulting the
29
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Constitution itself. In those cases, laws passed by
Congress or the states had to give way before the Constitution. We could trust
the judges to make those decisions honestly. Quoting
So
far it sounds pretty good, doesn't it? However,
The
judges will consult the “nobility.” They will consult the select few who are "wise," "rich," and
"good." They will then make all the long-range decisions. They will
find something in the Constitution to justify whatever they decide. We may not
be able to understand what they claim to find there. Never mind. We should just
trust them. They are members of a learned priesthood. And they would never lie.
30
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CHAPTER
4
ONE
AND ONE-HALF CENTS PER
In
1994, the people of
Citing
a Supreme Court precedent, a federal judge struck down the Amendment. In 1982,
in Plyler v. Doe, the
Now
the Proposition 187 ruling addressed a complex issue. Many thoughtful Americans
strongly favored it. They said that having young illegal aliens in school was
much better public policy than having them run the streets. However, in
Perhaps
you never heard of the Eleventh Amendment. The federal courts have been defying
it for about 200 years. So it’s rarely an issue in modern cases.2
The Eleventh Amendment says, "The Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States, by Citizens of another State, or
by Citizens or Subjects of any Foreign State.”
That’s
rather flowery language, but it’s meaning is fairly
clear. It says that federal judges are not allowed to decide any case in which
a foreigner sues an American state. They also may not decide any case in which
an American state is sued by a resident of a different state. It’s still in the
Constitution. Check it out.
If
you say that it’s an unwise amendment, and ought to be repealed, you’ll get no
argument from me. We had to repeal an unwise amendment before and we could do
it again. You may recall the Eighteenth Amendment by which “We the People”
wrote prohibition into the Constitution. It was ratified in 1919 and took
effect in 1920. We soon discovered that it was a big mistake. So, thirteen
years later, it was repealed by the Twenty First Amendment.
Our
judicial branch of government never allowed us to discover that the Eleventh
Amendment was a big mistake. The judges just refused to obey it. They’ve been
defying the Eleventh Amendment since soon after it was passed.
You
can find many recent examples. Back around 1970, a Dutch citizen wanted to
practice law in the State of
31
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requiring lawyers licensed to practice there to be
The
Eleventh Amendment has a rather interesting history. John Marshall, the First
Great Prince of Usurpation, played a big role in the story.
The
story begins in 1792 when the Supreme Court ordered the state of
The
record shows that a broad consensus supported adding the Eleventh Amendment to
the Constitution. And the people intended it to mean exactly what it said. The
Senate considered the proposed Amendment in 1794. Its members quickly disposed
of a motion to slightly limit its scope and then voted 23-2 to adopt it as
written.
A
couple months later the House of Representatives debated the proposed
amendment. A motion was made to tone it down a bit. The members rejected that
motion by a vote of 77-8. They then voted 81-9 to adopt the Amendment as written.
Thirteen out of fifteen states ratified it by 1795.5
The
people had wasted their time. The judges refused to obey it. The
Throughout
our history federal judges have used a variety of excuses in refusing to obey
the Eleventh Amendment. The excuses were mainly one of the following four
types.
■ The
Supreme Court ruled that one could get around the Eleventh Amendment by
appealing, to federal court, an adverse decision in state court. It claimed
that kind of case wasn’t “commenced or prosecuted” against the state.
■ The
Supreme Court also ruled that you could sue, in federal court, an
32
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officer of a state (for instance the governor) rather
than the state itself. The federal judge would then take the case. He would
rule that the officer, not the state, was the defendant. Never mind that the
officer was acting on behalf of the state. Never mind that he answered to its
citizens. The state was not really being sued. However, whatever the judge
ruled in the case was binding on the state.
■ Another common dodge was the consent-to-be-sued fraud. It
says that a state can waive the protection of the Amendment. Then the judges
went on to talk about "implied waivers." A state could waive its
rights without even knowing about it. It gets even better. All the states
supposedly gave an implied waiver against Eleventh Amendment protection when
they joined the
■ The judges also created another giant loophole in the
Eleventh Amendment. They claimed it did not cover political subdivisions of
states. Anyone could sue cities and counties in federal court to his heart's
content.7
In 1810, the
Historians
view Fletcher v. Peck as one of the most important cases of all time.
But that has nothing to do with the Eleventh Amendment. The case created major
precedents concerning the power of federal judges. Most historians fail to
mention that the Supreme Court defied the Constitution to create those
precedents. They also don’t tell us that the Court acted as a knowing accessory
to a swindle.
The
story began about the same time the people adopted the Eleventh Amendment. In
1795, the Georgia Legislature sold thirty-five million acres of state-owned
land to four
The
new Legislature quickly acted to cancel the fraudulent sale. However, the four
land companies also acted quickly to fence their stolen property. They sold
most of the land to speculators who resold parts of it to yet a third layer of
speculators. Most of those in the game knew they were handling hot goods, so
they had to keep it moving.
Before
long, a large crowd of hustlers had money in the deal. They all pretended
surprise when
33
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That law also ordered the
The
hustlers then did what swindlers still do in such cases. They hired some
well-connected lawyers and lobbyists. The lobbyists worked Congress and the
lawyers schemed to find a way around the Eleventh Amendment. They needed to
find a way to get federal judges into the game.
Years
went by. The lobbyists made a bit of progress, but there are limits.
Congressmen must run for reelection. Passing a law to safeguard the ill-gotten
gains of swindlers and crooks is always risky.
The
lawyers finally thought up a promising ploy. A
Both
Fletcher and Peck claimed that they were as pure as the newly driven snow. They
had been totally ignorant of the fraudulent nature of the original deal. It was
obvious to all that the suit was a setup to position federal judges to get around
the Eleventh Amendment and rule on
The
case got to the Supreme Court in 1809. The lawyers on both sides were well
connected with the judges who would hear the case. Two well-known lawyers named
Robert Harper and Joseph Story represented Peck. Story got himself appointed to
the Supreme Court a year or two later. Harper and Story also had money in the
deal.8
A
famous hotshot named Luther Martin represented Fletcher. Martin was an old
crony of the justices and was generally thought to be the most
clever lawyer of his time. The scheme required Martin's client to lose
in court so they could all make money. Martin played his role well. Historians
suggest that he came to court drunk to throw the case.8
The
Supreme Court played along with the scheme. It ignored the Eleventh Amendment,
pretending that
A WISE PRINCE DOES NOT KEEP FAITH
The
Fletcher v. Peck case showed most of
34
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most Federalists, Marshall viewed property rights as
paramount.
The
case also showed his agenda. It was to write his biases into the Constitution
through judicial rulings. He pursued that agenda by following the advice of Machiavelli.
He was devious and tricky. He was patient. He followed a long-range plan,
picking cases that would create precedents distorting the law in small steps.
The
His
Court’s rulings usually advanced the agenda of some powerful faction. In this
he also followed advice in The Prince. That faction, when combined with
those afraid to shake the boat, would protect the judges. Most folks tolerate
corruption when it leads to an outcome they desire.9
We
can't leave the First Great Prince of Usurpation without mentioning Marbury v. Madison, his most famous case.
More than any other decision, it gave rise to his heroic status in legal
folklore. It also showed his devious talents at their best.
Historians
consider his ruling a stroke of genius.
35
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However,
nobody bothered to challenge
At
the time, Republicans in Congress were working on a plan to impeach some
judges. They wanted to punish them for their "reign of terror" a few
years earlier. They warmed up with a lower-ranking judge named John Pickering
whom they had picked because he was an easy target. He was believed, apparently
with good cause, to be crazy and a drunkard.
Next
they went after Samuel Chase, a Supreme Court justice. You may recall his
exploits from Chapter 1. Chase was the loudest and most intemperate judge who
had persecuted Republicans with the Sedition Act. Historians believe that
Marshall and a few other Supreme Court justices were also on the impeachment
list.
The
House voted to impeach Chase in 1804. It then appointed a committee to press
the case against him in the Senate which had a large Republican majority.
Nevertheless, in early 1805, the Senate failed to convict Chase. A conviction
required the votes of two-thirds of the Senators. The votes weren't there.13
According
to various historians, the House managers of the trial in the Senate bungled
the case. Also, many Senate Republicans were leery of striking a blow against
the independence of judges. They worried about the long term effects. That is
how historians explain it today and they applaud the wisdom of the outcome.
Thomas Jefferson never got over the failure of the Chase impeachment attempt.
His letters for many years after ridiculed the impeachment weapon as,
"only a scarecrow."13
In
any case, the crisis passed.
John
Marshall died on the job in 1835. During his funeral ceremonies, legend has it, the Liberty Bell was rung in his honor. It suffered a
giant crack
36
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in its side, and has been silent ever since. One is
tempted to conclude that it was mortified at lending its voice to honor such an
infamous enemy of liberty. So it died of shame.14
37
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38
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CHAPTER
5
A
SCAM IS BORN
Every
few seconds someone gets a phone call from a place the cops call a “boiler
room.” There’s no boiler there, just desks and telephones. Several con men are
using the telephones to call up folks looking for victims. When they find one,
they try to sell him a thousand shares of phony stock or five acres in the
middle of a swamp. The con men need to make a lot of calls because they usually
have a very low hit rate. Most of their targets refuse to be victimized.
However,
there’s another confidence racket that’s much more sophisticated than the
average boiler room pitch. Lawyers call it the “substantive due process
doctrine.” Hustlers have long worked this racket in courtrooms all over
The
due process scam is a big, nasty mutant. The Supreme Court bred and bore it
just before the Civil War. In fact, one could make a case that it caused the
Civil War. It has continued to evolve bigger and nastier ever since. It’s still
devouring your rights.
In
1857 the Court decided the case of Dred
Scott v. Sanford. The Chief Justice was a fellow named Roger Taney. The
History
books say the Dred Scott case was mainly about
slavery, an issue that had caused stress in
Most
of them viewed slavery as morally repugnant. And they thought that nearly all
would see it that way, given enough time. Then slavery would die out. They
relied on political give and take to end it in a peaceful way.1 As part of the give and take, Congress had enacted the
Missouri Compromise in 1820. Among other things, it forbade slavery in the
Dred Scott was an elderly slave who sued his owner, named
39
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shows that Roger Taney and the other judges who voted
with him were biased in favor of Southern slave owners.
At
that time it looked like slavery’s days were numbered. Public opinion against
it in the North was growing. And the North was gaining people and wealth faster
than the South. The justices were looking for a way to put their thumbs on the
scale of justice and tip the balance back in favor of the slave owners.
In
searching for an excuse to justify what they wanted to do, the justices focused
on the idea of slaves as property. The Fifth Amendment said that nobody could
be deprived of "life, liberty, or property, without due process of law."
The
Court said that the Constitution hadn't spelled out,
in so many words, that Congress had a right to control “property” in the
This
ruling was a big surprise to most legal scholars at the time. They knew that
the Constitution gave Congress a lot of powers that it didn’t spell out in
detail. Our founders had wanted to avoid writing a shelf full of books. Legal
scholars also knew that the founders intended the term “due process” to limit
only courts, not Congress. For about 500 years the term had never applied to
anything but the courts. It was intended to control the conduct of judges, not
legislators.
Even
the great Federalist thinker, Alexander Hamilton, had said, on the record,
"The words due process have a precise technical import, and are only
applicable to the process and proceedings of the courts of justice, they can
never be referred to an act of the legislature."2 Legislatures
had control over the substance of laws and courts controlled only the processes
by which the laws were applied to individual cases.
Nobody
ever accused
The
members of the
Legal
scholars explained in the newspapers what a fraud the Dred
Scott ruling was. The papers also exposed the fact that the judges were biased.3
As a
40
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result, most of the public saw through the deception.
Abraham Lincoln, and others, charged that members of the Supreme Court were
working a massive plot to force slavery on the entire nation.4
In
a speech in
The
people responded to the acts of lawless judges by electing Abe Lincoln and
other folks who had promised to take drastic action. The 1860 election was
followed almost immediately by the Civil War.
We
all learned in school that the Civil War resolved the issue of slavery. We
learned that the Dred Scott case was a milestone in
the sequence of events which led to that war. We also learned that history
judged the Dred Scott decision to be wrong. However,
our school teachers didn’t take the next step. They never suggested that the Dred Scott ruling caused the Civil War. It would not be
politically correct to teach that a rogue Supreme Court caused a war which claimed
a million casualties. A few writers have suggested that it did. But school
books hardly ever mention this idea.6
After
the election of Abe Lincoln and other Republicans, southern slave owners saw
political disaster staring them in the face. So they resorted to war to obtain
the justice that the Supreme Court had said was theirs. To that end they took
on a much larger and richer power. The Northern States had four times their
(white) population and eleven times their industrial strength. Only in
agriculture, morale, and in numbers and quality of trained officers could the
Southern States compete.7
Their
morale and the quality of their officers kept them in the game for a while. But
they lacked resources and they lacked bench strength. The Northern States were
guaranteed to win, given a little time. For the South, the Civil War was
insane.
However,
Southerners knew the Constitution was on their side. Truth and justice were on
their side. The high priests of the Supreme Court had told them so.
Judicial
usurpation led to a Civil War. More that half a million died.
Another half a million were wounded.7 About
a decade later, we amended the Constitution to erase the Dred
Scott decision. But the due process scam to which the decision gave birth lived
on. It claims new victims every year.
41
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42
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CHAPTER
6
THE
MOTHER OF ALL LOOPHOLES
If
it wasn’t for the Fourteenth Amendment, federal judges would have to think up
another way to protect nude dancing in bars. They’d have to make up totally
different stories to use to outlaw school prayer and protect abortionists.
They’d have a much tougher time keeping criminals out on the streets. For the last
fifty years, or so, judges have used the Fourteenth Amendment, along with the
due process scam, to grab control of an endless variety of state and local
issues. Let's review a few examples.
Judges
have told us that the Fourteenth Amendment demands gender equity. It orders
that state and local government programs must treat both sexes pretty much the
same. Women cast more than half the votes in
Federal
judges claimed that the Fourteenth Amendment mandates forced busing to
integrate public schools. That would be a big surprise to the congressmen who
authored it in 1866. They intended quite the opposite. And they said so on the
record. Even liberal law professors admit this. You can look it up in an essay
by Laurence Tribe.2
The
Thirty-Ninth Congress, which drafted the Fourteenth Amendment, also ran the
That’s
an outrage, you say. Indeed it is. Most Americans today would be willing to
amend the Constitution to outlaw such things, but they never got the chance.
The Supreme Court got out in front of public opinion and amended it for them.
While the judges were at it, they also amended it to require forced busing
based on race. Public opinion never caught up to them on that one.
Federal
judges claim that the Fourteenth Amendment supports a right to an abortion.
Yet, when the states ratified the Amendment, most of them had anti abortion
laws on the books. They passed or toughened many of those laws in the 1860's
and 1870's.4 So, while the states were
passing laws against abortion, they amended the Constitution to nullify all
those laws. Sure!
Legal
scholars have a cover story to explain contradictions like those described
above. It goes something like this: Yes indeed, no one back then
43
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intended the Fourteenth Amendment to protect abortion.
No one intended it to demand gender equity or public school integration. But
the founders were very wise. They knew that we would need changes as time went
on. So they used sweeping, vague language. They wanted to give the Supreme
Court the tools it needed to adapt the Constitution to the needs of changing
times.
I
can give you four reasons to reject that cover story:
■ First,
the words of the Fourteenth Amendment give the lie to the story. The Amendment
says "Congress shall have the power to enforce, by appropriate
legislation, the provisions of this article." It never mentions judges. If
our founders wanted judges to use the Fourteenth Amendment to revise the
Constitution for us, you’d think they would have given us a clue.
Actually,
our founders intended exactly the opposite. The above language wasn’t used in
Constitutional Amendments until after the Dred Scott
decision. After that, Congress began including it as a message to the Supreme
Court. Even the Supreme Court admitted this for a decade or two after the
Amendment was passed. In 1879, in Ex Parte
Virginia, the Supreme Court wrote:
“It is not said
(by the Fourteenth Amendment, that) the judicial power of the general
government shall . . . be authorized to declare void any action of a State in
violation of (its) prohibitions. It is the power of Congress which has been
enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation.”5
■ Second,
the framers of the Fourteenth Amendment knew how to adapt the Constitution to
meet the needs of changing times. They did it three times within the space of
five years. They adopted the Thirteenth Amendment in 1865, the Fourteenth in
1868, and the Fifteenth in 1870. They used the method that the Constitution
requires us to use when we want to adapt it to changing times. Our original
founders, who framed the Bill of Rights, also used that same method. They
amended the Constitution, in the proper way, ten times in 1791 and twice more
before 1805.
■ Third, at the time the Fourteenth Amendment was drafted and
ratified, distrust for the Supreme Court was at an all-time high. Renegade
judges had not stopped at helping to cause the Civil War. The Supreme Court
compounded its crime by trying to obstruct the Federal Government’s conduct of
the war.6 Abraham Lincoln blew them off, but they kept trying. You
might say the Supreme Court gave aid and comfort to the enemy in wartime.
That’s the definition of treason. And the people who framed and ratified the
Fourteenth Amendment were well aware of that. In December, 1866, The
Washington Chronicle wrote that
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“treason had found a refuge in the bosom of the
Supreme Court of the
In
March, 1867, Harper’s Weekly accused the Court of trying to “reverse
the results of the war.”8 In April, 1867, The Independent
wrote that the Supreme Court was “regarded as a diseased member of the body
politic,” and was risking “amputation.”9
All
this extremely harsh criticism of the Supreme Court occurred while the
Fourteenth Amendment was before the states for ratification.
Members
of Congress, who framed the Fourteenth Amendment, were determined to block,
rather than enable, further judicial usurpation of legislative powers. Listen
to excerpts from a speech given in the House of Representatives by Congressman
John A. Bingham, of
In
January 1867, Bingham proposed “sweeping away at once the court’s appellate
jurisdiction in all cases.”11 He went on to say,
“If, however, the
Court usurps power to decide political questions and defy a free people’s will,
it will only remain for a people thus insulted and defied to demonstrate that
the servant is not above his lord, by procuring a further Constitutional
amendment and ratifying the same, which will defy judicial usurpation, by
annihilating the usurper’s (amendment) in the abolition of the tribunal itself. ”11
That’s
pretty strong language for “the leading House moderate” among the Fourteenth
Amendment’s framers. It underscores the degree of mistrust of the Supreme Court
held by those framers. This is not the sort of climate in which Congress would
amend the Constitution to give the Court free rein to adapt it to the needs of
changing times. Congress viewed the Court’s habit of usurping “power to decide
political questions” as the problem, not the solution. That’s why Congress
wrote the three Civil War Amendments to keep enforcement power for itself.
■ Fourth,
in the records of the 39th Congress, the framers described exactly what they
intended the Fourteenth Amendment to accomplish. They had a limited agenda and
they spelled it out. Their agenda did not include giving judges power to amend
the Constitution.12
That
summarizes my four reasons for rejecting the story that our founders intended
the Fourteenth Amendment to empower judges to revise the Constitution to meet
the needs of changing times. That story line is so plainly
45
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fraudulent, it’s a joke.
CONVENIENTLY VAGUE LANGUAGE
The
material just above describes what the founders didn’t intend the Fourteenth
Amendment to accomplish. In the interest of completeness we should probably
cover the goals they did have for the Amendment, especially its Section 1 which
contains the terms “due process,” “equal protection,” and “privileges and immunities.”
Taking advantage of those terms’ “convenient vagueness” judges have been
supplying a growing body of fraudulent meaning ever since.13
Numerous
professors have studied the matter and their reports generally support the
statement that the changes the founders intended to accomplish by Section 1
were limited and fixed for all time.14 And
they intended for Congress, not the courts, to have enforcement power. Rather
than study the professors’ reports, however, it’s easier to read what the
Supreme Court itself said on the subject five years after the Amendment was
ratified.
In
1873, the justices of the Supreme Court knew exactly what the Fourteenth
Amendment’s framers intended because they had been around to see and hear for
themselves. They were also afraid to try any bold new power grabs so soon after
the Court’s recent monumental blunders. So, in deciding the 1873 “Slaughter
House Cases,” a majority of Supreme Court justices decided to play it straight.
They turned down a proposal, from a fellow named John A. Campbell, to try and
steal some legislative power.
When
ordinary, honest, working people are cheated by the government, they naturally
get angry. They usually do not take very long to conclude that the unjust act
is unconstitutional. That is just human nature. Before long, the victims look
around for a lawyer to convince some judge that the unjust act violates the
Constitution.
The
butchers were victims of an unjust act. They needed to do something
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about that. So they hired John A. Campbell to get it
turned around. In due course he took their case to the Supreme Court. At this
point,
The
Court said that “the first clause of the fourteenth article (Fourteenth
Amendment) was primarily intended to confer citizenship on the Negro race” It
went on to say, “the privileges and immunities of citizens of the United States
. . . are placed under the protection of Congress” It clearly acknowledged that
the Amendment empowered Congress, not the courts.
The
opinion continued, “It is not necessary to inquire here into the full force of
the clause forbidding a State to enforce any law which deprives a person of
life, liberty, or property without due process of law, for that phrase has been
often the subject of judicial construction, and is, under no admissible view of
it, applicable to the present case.” So much for the due process scam, the
Court dismissed it with contempt.
The
Slaughter House opinion continued, “The clause which forbids a State to deny to
any person the equal protection of the laws was clearly intended to prevent the
hostile discrimination against the Negro race so familiar in the States where
he had been a slave, and, for this purpose, the clause confers ample power in
Congress to secure his rights and his equality before the law.”
So much for allowing judges to pour all sorts of radical new
meaning into the equal protection clause. The 1873 Supreme Court again
acknowledged that the Fourteenth Amendment created fixed and limited rights and
empowered Congress, not the courts.
Supreme
Court justices wrote the above words a few years after the
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Fourteenth Amendment was ratified. They had read all the debates that led to
the Amendment. Some of them had probably been present at the debates. They
certainly knew lots of people who had. They would have loved to vote the other
way. It would enable them to right a wrong and it would have enhanced their
power. But it was too soon. The meaning of the Fourteenth Amendment was fresh
in the people's memories. And they didn’t want to risk “amputation”16
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CHAPTER
7
OFF
TO SEE THE WIZARD
You
probably saw the movie, The Wizard of Oz, more than once. It was based
on a book written by a fellow named L. Frank Baum. Professors who study such
matters have claimed that Mr. Baum intended The Wizard of Oz to be a parable.
It told a story about politics in
Baum
wrote the Wizard of Oz in 1903. According to the professors, the book expressed
a deep cynicism about our political system. Workers and farmers had been
getting the shaft from big business for years. Workers and farmers cast a lot
more votes than did business tycoons. So they tried to use the ballot box to
stop getting the shaft. They kept trying through the 1920's, but it didn’t
work.
Every
character and event in the book was supposed to represent a character or event
in the political drama being played out at the time. Everything the working
people placed their hopes in had failed them. The Wizard of Oz was a parable
about those failures. The Wizard character stood for the President who “is
powerful only as long as he succeeds in deceiving the people.”1 A
series of presidents had failed to fix the problems as they had promised.
Like
the President, the Wizard seemed to have awesome powers. For Dorothy’s visit he
was a giant head sitting on a big throne of green marble. For the Scarecrow he
was a beautiful, winged lady sitting on the same green marble throne. The Tin
Man saw a scary beast. The Cowardly Lion saw a ball of fire floating in the
air.2 It turned out that the Wizard had created
all these illusions through cheap circus tricks. His goal was to impress the
people and maintain his status and power. He was just a shameless fraud who
made promises he had no way to keep.
We
now know that L. Frank Baum’s parable missed an important point. Back then,
Presidents had even less control over the economy than they have now. Congress
didn’t have control either. Nor did the states.
Beginning around 1890, the Supreme Court used the due process scam to seize
control of the economy. Elected politicians couldn’t fix the economy because
courts struck down every attempt that might succeed. Federal judges were in bed
with the tycoons.
Based
on a review of its decisions, one can mount a cogent argument that the U. S.
Supreme Court caused most of our economic grief in the era from 1890 to 1937.
The grief we’re talking about includes the Great Depression.
Of
course there was no single cause for the Depression. Students of the
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matter have developed a long list of partial causes.
The list includes things like the 1929 stock market crash, the 1930
Smoot-Hawley tariff law, economic problems abroad, and an overly timid Federal
Reserve. You can find most of the list in Chapter 1 of the book, The Great
Depression, by John Garraty.
The
partial causes helped trigger the depression or made it more severe. But there
was only one main cause. Actions, over 3 decades, of a lawless Supreme Court
created a chronic condition which had to end in economic failure. Historians
don’t let on that they see it that way. They lay the groundwork for placing
most of the blame on the Supreme Court. But they don’t take the final step.3
Scholars
hardly ever blame the Supreme Court for anything that goes wrong. They start
with the premise that all the Court does is faithfully interpret
the Constitution. If that premise were correct, blaming the Court would be the
same as blaming the Constitution. However, if the judges are making policy,
they deserve blame for the damage they cause. Our judicial branch of government
is certainly making policy.
The
scholarly process goes more or less along the following lines. Every once in a
while a biased Supreme Court claims to discover a new right in the
Constitution. It hands down orders aimed at fulfilling that claimed right.
Sometimes those orders lead to a big crime wave, a civil war, a depression, or
some other catastrophe.
Social
scientists then perform a series of detailed studies to learn the reasons for
the catastrophe. However, on any issue that might threaten judicial
independence, they stick their heads in the sand. They identify all the minor
causes for the catastrophe and pretend that’s the whole story.
They
don’t really want to know the whole story. The Supreme Court is not a passive
channel for messages from our founders. It’s an aggressive policymaking body.
So it members are to blame for the troubles their policies cause. Academics,
lawyers, and those in the media don’t want any part of that idea. Going public with that idea might cause the “great beast” to get
restless.
A CONTINUOUS CONSTITUTIONAL CONVENTION
Let’s
explore my assertion that Supreme Court policies helped cause the depression.
First I’ll present three points that summarize my argument, then
I’ll give you some specifics about each point.
■ The
Supreme Court seized control of the nation’s economy from about 1890 through
the mid 1930's. During that period it acted as an economic policy czar.
■ Its policies caused a small percent of the households to end
up with most
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of the wealth. Let’s call that problem the “wealth
gap.”
■ The wealth gap was a major cause, perhaps the main cause, of
the Great Depression.
Among
historians and legal scholars, it’s well accepted that judges ran the American
economy from about 1890 to 1937. In describing how the Supreme Court took that
role,
The
people tried, through those they elected, to exert some control. But Supreme
Court majorities refused to allow elected bodies to pass laws that would level
the playing field. The Court said that the Constitution didn’t permit either
the states or the federal government to mess around with the free market.
Guess
what parts of the Constitution had this magical property. Right.
It was the “due process” clauses of the Fifth and Fourteenth Amendments. The
judges used the Taney Court’s due process scam to give business tycoons free
rein to run roughshod over the rights of everyone else.5
For
forty years, the judges gave thumbs up or thumbs down
on most state and federal laws affecting the economy. Usually it was thumbs
down. In 1890, the Supreme Court seized control over the power to set railroad
freight rates.6 Some states had tried to
set them a little too low for the judicial taste.
The
Court cut the heart out of the Sherman Anti-Trust Act in 1895.7 It also claimed, in 1895, that the Constitution forbade a 2
percent federal income tax on the wealthy.8 The people had to adopt
the Sixteenth Amendment to fix that doubtful ruling.
A
legal scholar named B. F. Wright compiled a list of Supreme Court rulings,
between 1899 and 1937, which blocked attempts by states to assert some control
over business matters. Mr. Wright had 184 decisions on the list.9
For
example, the Court said that neither states nor the federal government could
place limits on the number of hours employees could be forced to work.10
It claimed that the Constitution forbade any kind of
minimum wage law.11 It also forbade any laws against child labor.12
In
the 1920's, the Supreme Court redoubled its efforts to block economic policies
responsive to public demands. During that decade, the number of its rulings
protecting business from government regulation exceeded the total number during
the prior fifty years.13 The 1920's ended
in the Great Depression.
It’s
beyond dispute that the Supreme Court controlled the economy for the four
decades leading up to the depression. That control alone creates a reasonable
presumption that the Supreme Court caused the depression. It happened during
the Court’s watch. Who else should we blame?
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THE WEALTH GAP
Now
let’s discuss the second part of my argument. Supreme Court policies created a
“wealth gap.”
For
four decades, Court rulings caused wealth to migrate from the poor to the rich.
The rich had all the economic leverage. All the working people had was their
votes. The judges made those votes meaningless, robbing them of whatever
control they might have had.
By
1922, the richest 1 percent of the population had about 32 percent of all the
wealth. Between then and 1929, when the market crashed, their share climbed to
over 36 percent. That year the top 1 percent had a higher share of national
wealth than at any previous time in history.14
Now
let’s discuss the third part of my argument. The wealth gap set the stage for
the depression in three ways.15
■ Farmers,
workers, and small businessmen were all struggling to hold on to a shrinking
piece of the pie. So they came to rely ever more heavily on borrowing to stay
afloat. Bankers weren’t too happy to extend large amounts of credit to high
risk customers. But it was either that or go out of
business. High risk customers were about the only kind that came forward.
Excessive borrowing by those with no realistic prospects of repaying set the
stage for a wave of bank failures.
■ A
small but wealthy minority had plenty of extra money. Naturally they wanted to
invest most of it in productive enterprises. Too much investment led to more
production than the masses who lacked money could
consume. Unsold goods kept piling up which eventually positioned many producers
to go bankrupt.
■ Some of those with too much money completely lost their
sense of proportion. They bid up the prices of common stocks far beyond any
measure of true value. Seeing their profits caused a lot of other folks to
throw their money in too. They thought the rising stock market would never end.
It always ends. And the higher stock prices rise above their true value, the
further they fall. When the down cycle came, in 1929, the market went through
the floor.
The
judicially created wealth gap had led to three highly unstable conditions in
the economy; banks overexposed to bad loans, thousands of producers positioned
to go bankrupt, and a vastly overvalued stock market. When everything fell
apart, Americans suffered a massive loss of confidence in the economy, their
government, and the future. Rogue judges had created a monstrous wealth gap and
set the stage for the Great Depression. Events of 1929 merely triggered it.
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So
L. Frank Baum’s parable had the wrong villain. He should have made the Wizard
represent the Supreme Court, not the President. Like the Wizard, the justices
resort to deception and trickery and fail to keep their promises. They fail to
keep are their oaths to uphold the Constitution.
At
least The Wizard of Oz had a happy ending. Dorothy got back to
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CHAPTER
8
VIKING
JURISPRUDENCE
Every
generation is not blessed by the presence of a Great Prince of Usurpation on
its Supreme Court. John Marshall, The First Great Prince, passed from the scene
in 1835.
Ike
had commanded our armed forces in a war in which millions of people died. He
became President while our troops were fighting in
Ike
soon learned he had made a big mistake. Warren led the Court in such bold
assaults on the balance of powers, that some of his early biographers called
attention to his "Viking" heritage or Viking genes.1 His
mother was born in Sweden and his father in Norway. So his ethnic roots were in
the Viking homeland,
The
word Viking comes from a Norse word vikingr
which means pirate.2 In the era from about
800 AD to 1100 AD, the Vikings plundered most of
Vikings
were the Hells Angels of their era. Of course, they didn't frighten their
victims with roaring motorcycle engines. They traveled around in fast,
maneuverable warships which they rowed right up on the beach. They frightened
their victims with large, fierce dragon carvings mounted on each boat's prow.
The
Vikings didn't stop with piracy; they went on to bigger things. In later years
they attacked in greater numbers, killed off the local nobles, and stayed
around to run things. For many years, Vikings and their descendants ruled parts
of
In
911 AD, a Viking chief called Rolf the
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the
The
French king, a fellow called Charles the Simple, wanted to induce Rolf to
settle down and quit tearing up the country. So he gave the Vikings a big piece
of
Rolf’s
Vikings and their descendants lived in
By
1100 AD, the era of Viking raids was over. The most aggressive men from
Therefore,
it’s not likely that Viking genes or Viking heritage had much to do with Earl
Warren’s style. However, writers who admired that style reached back a thousand
years and used the Viking metaphor. They wished to call attention to his
boldness. We’re going to have some fun with that metaphor. What the
THE SECOND GREAT PRINCE OF USURPATION
Earl
Warren’s new workplace, the Supreme Court building, did not inspire him to
approach his job with restraint. Few could spend years, much less decades, in
its inner chambers without starting to think of themselves as royalty. Early
observers called it “The Marble Palace.” Its courtroom alone has roughly twenty
times the volume of a typical middle class house. Friezes (sculptured murals)
span the courtroom’s north and south walls. They depict eighteen heroic figures
from history.
It’s
an amusing exercise to list the main occupations of those eighteen figures from
the past. The list includes four emperors and five kings. The rest were
religious leaders, statesmen, a judge or two, and a merchant. When Supreme
Court justices look up on that wall, half the role models they see are emperors
and kings.5 It didn’t take Earl Warren long
to start acting like a Viking king.
Earl
already had a record of Viking leadership. During his earlier career
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in
In
the months after the Japanese attack on
Earl
Warren tried to give the voters what they wanted. As
The
FBI opposed the move. J. Edgar Hoover claimed his agency had already locked up
the few Japanese-Americans we needed to worry about. That was roughly a dozen people.7 However, Earl Warren put up a
more determined argument, so he won.
By
1943, a lot of people felt guilty about the whole thing. A movement arose to
free some of the prisoners. Many of them were elderly and it was fairly clear
they were loyal Americans. By then, thousands of their relatives were serving
in our military.8 At this point, most fair
minded Americans recognized the internment as a monumental injustice.
However,
a big block of
RED MONDAY
The
Viking Chief who had lobbied to lock up 70,000 American citizens without trials
had a change of heart when he got on the Supreme Court. He needed a new act to
get respect from liberal eastern newspapers, so he assumed a new act.
Then,
in 1957, the
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It’s
recently been documented that communist governments, over the years, murdered
somewhere between 85 million and 100 million people.11 Most of those
millions were already dead on Red Monday. At that time, communists ruled about
a third of the world’s population.
People
back then didn’t have a good handle on the numbers. But they were aware that
communists had killed or enslaved many millions. They knew that communists had
momentum and had threatened to kill or enslave them too. The public knew that
communist spies in
A
few months earlier, in November 1956, the Soviet Army had invaded
The
They
were also well aware that our Constitution named the President as
Commander-in-Chief and assigned him primary responsibility to assure
It
appeared that judicial usurpation had gone way too far. So conservatives in
Congress tried to fix the problem. In 1958, the Senate debated the Jenner Bill, a bill to withdraw Supreme Court jurisdiction
in five areas relating to national security. In the debates, the sponsors of
the bill criticized the
VIKINGS’ REVENGE
The
justices pretended to ignore the political storm they had caused, but you can
bet they were plenty mad. They never said so publicly, but they were
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anxious to find a way to hit back at those who had
insulted and threatened them. That’s just human nature. Besides, Machiavelli
had advised his students that the “family” of a defeated enemy should be
“extinguished.” So the
Its
chance soon came along. But it required that Earl Warren change his stripes
again. Back in 1948,
However,
in the 1960's he liked the results of enacting the same proposal nationwide. So
he led the Supreme Court in two landmark decisions that wrote it into the U. S.
Constitution. In Baker v. Carr and Reynolds v. Sims, the Court
took control of elections away from the states and seized it for itself. Those
decisions also shifted large chunks of power from conservatives to liberals.
They went a long way towards extinguishing the political families of the
Of
course no one can prove what the
The
justices weren’t in a position to change the Constitution. But people trusted
them to interpret what it said. They just claimed that it already contained the
one-man-one-vote rule. They also claimed it gave federal judges the power to
make rules for state elections. In Reynolds v. Sims they ruled that both
houses of state legislatures must be apportioned according to one man one vote.
It was handed down on June 15, 1964.21
Hardly
anyone at the time understood where the
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election rules. Otherwise, the people would never have
allowed it to pass. It also gave enforcement power to Congress, not the courts.23
Forty-five
years after the Fourteenth Amendment was ratified, the people sent a clear
message that they still weren't ready to write the one-person-one-vote idea
into the Constitution. In 1913, they ratified the Seventeenth Amendment which
called for the direct election of
THE RULE OF LAW
Don’t
get the idea I’m against the one-person-one-vote principle. Back in the 1950's,
politicians in the states were dragging their feet on adjusting electoral
boundaries to reflect population shifts. Those in power, in many states, were
hogging unfair shares of political clout. Without the
Let
me illustrate this point with a little allegory about two opera lovers, Dudley
and his wife, Gwendolyn. Dudley, a judge in the Plum Creek Municipal Court, and
Gwen, had season tickets to the winter performances of the Plum Creek Opera.
Their tickets included prepaid parking in the new three story municipal garage.
One Sunday afternoon (their tickets were for Sunday matinees),
they got in their car and drove downtown to enjoy a new and unfamiliar modern
opera.
When
they got to the parking garage,
Dudley
and Gwendolyn exited their car by climbing out the window on Gwendolyn’s side
and headed toward the opera house. The performance proved to be a big
disappointment.
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After
enduring the first act, Dudley and Gwen left early, entering the parking garage
at the ground floor. There was nobody around. Rather than taking the elevator,
In
due course, they climbed back in the car window on Gwendolyn’s side, and
On
Monday morning, the Plum Creek Gazette carried a front page story about a crime
wave in the downtown parking garage. The police said that vandals had done
$29,000 in damages to cars parked there by Plum Creek’s leading citizens. The
department was looking for the perpetrators and planned to throw the book at
them.
I
assume you agree that
Americans
are supposed to be ruled by laws, not men. Dudley, a judge, violated a sacred
trust by acting as a vigilante. That makes him a criminal. Earl Warren and his
fellow Vikings were criminals too. Their authority derived entirely from our
Constitution which describes, in Article V, the only legal process for amending
it. The Reynolds v. Sims ruling served a form of justice but it violated
their oaths to the Constitution. It substituted rule by nine wilful and arrogant old men for the rule of law.
Earl
and his fellow Vikings all died heroes. Liberal newspapers praised them for
their courage and sense of fairness. However, like
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CHAPTER
9
JOHN
MARSHALL’S PROMISE
In
the last eight chapters, we’ve taken a brief tour of the first 200 years of our
Supreme Court’s history. We’ve discussed some, but by no means all, of the
deceptions our judges have practiced and the disasters they’ve caused. Now
let’s step back and look at those 200 years as one continuous process. We’ll
start with some unkept promises the judiciary made at
the outset. We’ll look at some data that shows the problem has gotten
progressively worse over time. And I’ll share with you some warnings by our
founders that were, unfortunately, ignored.
Let’s
begin with two quotes by John Marshall, the First Great Prince of Usurpation.
The two quotes explain the rules a judge must follow in order to honor his
oath. Since
“that
the intention of the instrument (the Constitution or one of its Amendments)
must prevail; that this intention must be collected from its words; that its
words are to be understood in that sense in which they are generally used by
those for whom the instrument was intended; that its provisions are neither to
be restricted into insignificance, nor extended to objects not comprehended in
them, nor contemplated by its framers . . .”
The
second quote is from
"Judicial
power is never exercised for the purpose of giving effect to the will of the
judge; always for the purpose of giving effect to the will of the Legislature;
or in other words, to the will of the law."
On
the basis of the above promises, we allowed the Supreme Court to assume the
power to interpret the Constitution for everyone. That was the deal. The
Supreme Court’s legitimacy depends on its members keeping those
promises.1
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426 BOGUS AMENDMENTS
Legal
historians have a lot of interest in Supreme Court "landmark decisions.”
The Court handed down several hundred of them in the two-hundred years between
1790 and 1990. According to Black’s Law Dictionary, a landmark decision is “a
decision of the Supreme Court that significantly changes existing law.” Black’s
Law Dictionary doesn’t mention it, but U. S. Supreme Court landmark decisions
usually concern the Constitution. It’s an open secret among lawyers that the U.
S. Supreme Court is in the business of amending the Constitution.
There’s
no other way to describe all those “landmark decisions.” Who’s going to believe
that honest and unbiased judges could routinely find radical new principles in
an ancient law?
Judges
interpreting a law 200 years after its passage can’t hope to discern the
intended meaning better than judges who were on the scene. Therefore, if the
Supreme Court was keeping
Now
take a look at Figure 1 on the next page. The numbers it shows were computed
from data given in a book by a fellow named Epstein. Each vertical bar shows
the number of Supreme Court landmark decisions in a single 20-year period
between 1790 and 1990. All told, Epstein’s list contained 426 such decisions.
Notice how their frequency grew with time.2
In
the first 20-year period the judges only made three of the 426 landmark
decisions. At that time many people were around who had helped write the
Constitution. They would have blown the whistle on any big, obvious, judicial
power grab. In that same two-decade period, the people approved twelve
Amendments to the Constitution. Most of the early action in changing the
Constitution was honest.
In
the latest 20-year period, between 1970 and 1990, the Supreme Court handed down
173 landmark decisions. During that two decades the
people managed to amend the Constitution only once. We ratified the 26th
Amendment in 1971. The Supreme Court did it 173 times and we did it once. We’ve
lost control over the constitutional amendment process to a bunch of princes
and princesses.
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We
can’t claim that nobody warned us. Our founders issued several warnings. George
Washington called the assumption of government power not
clearly
delegated by the Constitution, “usurpation.” In his farewell address, he warned
us to be on guard against it:3
"let there be no change by usurpation; for . . . this . . .
is the customary weapon by which free governments are destroyed."
James
Madison issued a similar warning in his Federalist No. 474
"The
accumulation of all powers, legislative, executive, and judiciary, in the same hands, . . . (is) the very definition of tyranny."
A
little further down,
“there is no liberty if the power of judging be not separated
from the Legislative and Executive powers.”
Thomas
Jefferson used much more emphatic language. The quote is from his letter to
Charles Hammond, August 18, 1821:5
" the federal judiciary . . . (is) . . . an
irresponsible body, . . . advancing its noiseless step like a thief over the
field of jurisdiction until all shall be usurped from the
By
"the government from which we separated"
The
warnings didn’t stop with our original founding fathers. President Andrew
Jackson, who had defeated the British at
“Mere
(Supreme Court) precedent is a dangerous source of authority, and should not be
regarded as deciding questions of constitutional power except where the
acquiescence of the people and the states can be considered as well settled.”
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About
30 years later, Abe Lincoln expressed a similar sentiment. The following words
were in his first Inaugural Address on March 4, 1861:7
“ . . . if the policy of the government, upon
vital questions affecting the whole people, is to be irrevocably fixed by
decisions of the Supreme Court,
. . . the
people will have ceased to be their own rulers, . . . ”
A PRINCIPALITY OF JUDGES
In
Article IV, Section 4, our Constitution guarantees to all of the states, a
“republican form of government.” That means each state’s laws must be made by
those whom its citizens have elected. In an 1849 case (Luther v. Borden),
the Supreme Court declared that it was going to ignore that part of Section 4.
The Court said it was up to Congress to enforce it.8
Since
the Supreme Court had claimed the exclusive right to interpret the
Constitution, Luther v. Borden effectively repealed our right to “a
republican form of government.” It saved the Court from ever having to deal
with embarrassing questions about whether stealth lawmaking by judges violated
that part of the Constitution.
The
bar graph a few pages back shows that stealth legislation by judges has become
steadily more brazen over time. Judges now control the processes that make our
most important laws. “We the People” are almost entirely excluded from a role
in those processes. Our “republican form of government” has been replaced by a
Supreme Royal Council.
Maybe
you think that’s OK, because the members of our Supreme Royal Council are not
hereditary princes. They aren’t born into power, they
earn their royal status, so to speak. They attend the best law schools, make
money as lawyers, and perhaps also do well in politics. They become princes by
successfully competing against other contenders.
Unfortunately,
there are two big problems with even that kind of royalty.
The first problem concerns the selection
process. Candidates to become princes and princesses are selected for their
political connections and their partisan bias. The process screens out people
who would be likely to keep John Marshall’s promises. It screens out people who
would be likely to honor their oath to decide cases impartially.
The
second problem has to do with lack of accountability. A well known quote by
Lord Acton captures the point. “Power tends to corrupt; absolute power
corrupts absolutely.” As a practical matter, our Supreme Court wields
absolute power. Its princes and princesses are not subject to any effective
review.9
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BOOK
II
ACLUISM
FOREVER
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CHAPTER
10
RIGHT
CRIME, WRONG CRIMINAL
In
1997, the Supreme Court “struck down” the Religious Freedom Restoration Act
(RFRA). The Court said that the law was unconstitutional. The RFRA, which
Congress had passed in 1993, restored certain traditional limitations on laws
and court rulings which interfered with the people’s religious practices.
Congress had passed it to nullify a 1990 Supreme Court ruling which had removed
those limitations.1
In
striking down the law (City of Boerne v. Flores, 1997), the Court said
that Congress was usurping judicial powers.1 That’s
a rather bizarre claim. In order to see just how bizarre, let’s review some
history. Back in 1791, “We the People” added the Bill of Rights to the
Constitution. We added it to protect the states and the people from the new
federal government. Almost every state had a Bill of Rights in its own
Constitution. The people didn't want federal judges protecting them from their
own states. That was like asking the mafia to protect you from a spanking by
your mother.
What
I said above is beyond dispute. John Marshall, the First Great Prince of
Usurpation, admitted it in 1833. The name of the case was Barron v.
Baltimore.
For
more than 100 years after Barron v. Baltimore, the courts admitted that
the Bill of Rights only limited the powers of the federal government. The book,
The American Supreme Court, by Robert McCloskey mentions cases in 1883,
1908, and 1922.2
Around
1940, the Supreme Court started using the due process scam to turn that
understanding on its head. Over the next couple of decades, it gradually
asserted that the due process clause of the Fourteenth Amendment made states,
cities, towns, villages, and public schools subject to the Bill of Rights. The
Amendment supposedly also empowered the Court to revise the Bill of Rights,
from time to time, so it would better conform to the justices’ own biases and
be a more effective tool of control. Some of the Court’s revisions restricted
the peoples’ free exercise of religion.
That
caused millions of voters to become upset. So members of
Congress got many complaints, each year, about our lost freedom of religion.
As time went on, the number of complaints, and the number of angry voters, kept
growing. Therefore, Congress, in 1993, finally passed the RFRA to put some
limits on those abuses.
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In
“striking down” the RFRA, the Court claimed that Congress was usurping judicial
powers. That claim was preposterous. Any powers conferred by the Fourteenth
Amendment were given to Congress, not to the Courts. We covered that subject at
length in Chapter 6. Our founders had wanted to avoid giving any more power to
a Court they viewed as “a diseased member of the body politic.” So they wrote the
Amendment to insure that federal judges gained no new powers except those given
them specifically by Congress.
In
passing the RFRA, Congress had tried to take back powers that the judges had
stolen over several decades. This was a challenge that the Supreme Court had to
confront. Otherwise it would have lost a major pillar of its house of frauds.
The justices saw this as a life or death issue so they used their big gun. They
ruled the RFRA unconstitutional.
Many
in Congress knew that the ruling was fraudulent. Members of Congress, however,
did not see RFRA as a life or death issue. It was something that the people had
demanded, so Congress had passed it. The judges then killed it off. The people
seemed to believe that Congress could do nothing in response. Congressmen,
therefore, saw no need to contest the issue.
Nevertheless,
the usurper is the Supreme Court, not the Congress. Judicial theft of
legislative powers is a crime against the American people. The people,
unfortunately, have no good way to prevent or punish this crime. The fox, so to
speak, is guarding the hen house.
OUR CIVIC RELIGION
Now
it’s time to share a dirty little secret. Federal judges have not only
restricted our free exercise of religion, they’ve also established an official
federal government religion. Legal scholars and historians have long been
writing about it. The next time you are in a library, go to the catalog and
check out the term "civic religion." You will find many books and
essays.3
The
paragraph below contains my own summary of the contents of those books and
essays. One shouldn’t blame the authors for my interpretation of their work. My
summary, I believe, captures the essence of the story; but it’s politically
incorrect and they would not want to share blame for it.
Judges
are the priests of our civic religion. Supreme Court justices are the high
priests. The bogus constitution that the judges made up is the civic religion’s
bible. The real Constitution, the one that begins “We The
People,” has been degraded to the status of an empty symbol. It fills the need
of the people to venerate something.
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AN ECCLESIASTICAL PRINCIPALITY
As
we discussed in an earlier chapter, actions of our judicial branch of
government can usually be understood by studying Niccolo
Machiavelli’s The Prince. One lesson it taught stood out from all the
others. That lesson concerned the best way for a tyrant to secure his power. He
should establish and maintain an "Ecclesiastical Principality." He
should set up a state in which the ruler enjoys the protection of an official
religion. I’ve copied a translation of Machiavelli’s actual quote, on the
subject, into the Notes and Citations Section.4
In
simple, modern language, the quote says that it takes talent or luck to
establish a state religion. However, once it’s established, any boob can hold
power in that state. Security for the ruler takes care of itself.
Of
course, Machiavelli did not invent the idea of security for a tyrant in a state
religion. He didn't invent any of the ideas in his book. He studied history. He
studied the careers of despots who had succeeded and those who had failed.
Successful tyrants had long known most of his lessons. He didn't invent any of
it. He just wrote it all down in a little handbook for future tyrants.
Throughout
history, despots have tried to link their power to the religion of the people.
Sometimes that was not practical. So they found or made up a new religion while
their power was at its height. Then they killed off the priests of the old
religion and imposed the new one on the people. After a while they could relax
a bit. They could now expect that their heirs would be able to hold onto what
they had built.
In
medieval
English
judges were agents of the king. So they also claimed to speak for God. This was
a basic part of their act. They took on the trappings of priests. They dressed
in robes, practiced rituals, and did business in Latin. English judges in the
colonies, of course, followed suit.
After
1776, the English king was out of the picture in
After
the people adopted the First Amendment, the judges also had to give up their
claim to speak for God. Various Supreme Court rulings in John Marshall's time
show how they solved the problem. They held on to all their priestly symbols.
They still claimed to speak for God’s law. They just didn’t mention God. They
called it “natural law” or “fundamental law.” They claimed that they spoke for
law that was "sacred" or law that existed before the
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Constitution and even before "society."5
American
judges still cling to religious imagery. They dress like priests. Latin is the
language of the courts. When they overrule a law, it is said they have
"struck it down." This calls to mind the mythical Roman God Jupiter
who punished with thunderbolts.6
In
1880, Oliver Wendell Holmes, a legal deep thinker of the time, wrote an article
in which he referred to the Dean of Harvard Law school
as “the greatest living legal theologian.”7 Friends of the Supreme
Court have called it the “secular papacy.”8
Of
course the secular papacy tries to avoid making its game too obvious. The
justices never say that God comes down to give them instructions at 3:00 every
afternoon. They also never say “listen up, this is
your god speaking.” That would be much too clumsy. They say that they have
looked within themselves and "discovered" what “fundamental law” says
about the issue in question.
Once
in a while the secular papacy slips up. During the Vietnam war
years, it laid down rules for use in deciding what is, or isn’t, a religion.
The Court heard two cases on the meaning of laws which allowed some men to
avoid serving in the military. Those laws said that Quakers, and other folks
who believed that all war was sinful, didn’t have to serve. But the basis of
their belief had to be a real religion.
However,
some men, who admitted that they did not believe in God, demanded to escape the
draft under those laws anyway. The draft boards didn’t buy it. So the men sued
in federal court. Why not? It was worth a try.
Two
cases got to the Supreme Court which, at that time, was very liberal. The
justices, therefore, wanted to find a way to let the draft dodgers off the
hook. So they ruled that "religion" did not have to include belief in
God, or prayer, or any of the usual things. Religion was any set of beliefs
that served as the basis of a person’s sense of right and wrong.
In
1965, in United States v. Seeger, the Supreme
Court ruled that a religion was any "sincere and meaningful" belief
which was as important to the one who held it as "orthodox belief in
God," was to most folks. In 1970, in Welsh v. United States, the
judges ruled that you could have a religion without even calling it a religion.9
The secular papacy is obviously running a religion as
defined by those rulings.
The
definition given in those two rulings is really not very far from the thinking
of academic experts on religion. Experts say that a religion is any "total
commitment to an all-embracing group goal . . . an ultimate concern."10
What
does a typical Supreme Court justice view as “an ultimate concern?" What are his most "sincere and meaningful"
beliefs? His most sincere and meaningful beliefs include the sacred status of
judicial power. They include the doctrine of stare decisis.
They include the contents of the bogus constitution.
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Those
are exactly the kinds of beliefs the Court defined as religion in Seeger v. United States. Those are also the
kinds of beliefs that experts in the field define as religion. Federal judges
have long been imposing those religious doctrines on all Americans while
restricting our free practice of religions that compete with theirs.
So
the verdict must be 'guilty as charged.' Our judicial branch of government has
long been defying the First Amendment.
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CHAPTER
11
A
NEW
For
In
1935, the justices got their Cathedral. They got a new Supreme Court building.
Those who saw its courtroom called it the "most magnificent room in
The
courtroom walls contain eighteen friezes which depict famous people from
history. Like stained glass windows in a church, the friezes are there to
inspire the faithful. They feature people like Moses, Solomon, Confucius and
Mohammed. That’s right. Some of them were religious leaders. Supreme Court
justices’ role models include a bunch of prophets.2
Around
the time they moved into their Cathedral, the high priests of our civic religion
came close to losing what John Marshall and his successors had built. After
causing the Great Depression, they used the due process scam to strike down
Franklin D. Roosevelt's “New Deal” schemes to fix it. FDR complained, but the
secular papacy stuck to its guns.
In
1936, the voters reelected
At
this point, the justices saw the light. They used the delay to make the problem
go away. Beginning in the spring of 1937, the Court approved every
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New Deal program that came before it, including some that were basically the
same as programs it had already struck down.4 FDR was pleased that
there was no further need for his court packing plan. The judges had gotten out
of his way. He knew he would soon get to replace some of them anyway.3
After
things settled down a bit, the justices of the Supreme Court had two serious
problems to solve. First, they needed to think of a new role for themselves.
They couldn't feel useful just rubber stamping FDR's New Deal. They needed to
exercise some power. Second, they needed to do something to make their
positions more secure.
The
justices needed to make some drastic changes to restore the prestige and
security of the Court. Its independence had come under threat. According to
advice in The Prince, their best recourse was to rejuvenate their state
religion. It had become empty and boring. It lacked emotional appeal.
It
had a priestly tradition. It had priestly clothes, ceremonies, and language. It
had an object of veneration, the Constitution. It also had a bible, the bogus
constitution that the judges had written. But it had no emotional content. They
needed to find a way to fill the void.
Around
this time, a dynamic new religion appeared on the scene. It was growing and it
didn’t already have an order of high priests. It appeared that an alliance with
this new sect might add emotional appeal to their civic religion. Like their
civic religion it was godless. So it wasn’t too obvious that it was a religion.
They could just graft its godless dogma onto their claim to speak for
fundamental law.
The
American Civil Liberties Union (ACLU) was using the Bill of Rights as a symbol
to package its agenda. The Bill of Rights had always bored the judges. They
knew that the founders intended it to protect the states and the people from
the federal government. They were part of the federal government.
But ACLU thinkers had a new
insight. As a symbol, the Bill of Rights had much more emotional appeal than
the whole Constitution. One could embrace the symbol, but sell the idea that it
meant the opposite of what it had always meant before. All one had to do was to
make up a complex cover story, wrap it in a religious package, and keep
repeating it.
The
secular papacy embraced the ACLU insight and decided to adopt the
Bill-of-Rights as a shining new symbol for itself. That would fill the gaps in
the judges’ religion. It would supply a dogma with emotional appeal. The Court
never gave its new religion a name. That might lead the common people to
suspect that it was mounting a major new assault on the First Amendment. So I'm
going to give it a name for them. This book will refer to the judges’
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new religion as "Acluism."
Beginning
around 1940, federal judges started revising the first amendment in their bogus
constitution. They used it as a club to drive competing religions out of the
public arena. Within a few decades, it said that no community could have
anything to do with Christian ideas or symbols. That was a dramatic change.
Christian symbols were intrinsically bound up in
When
“We The People” adopted the Fourteenth Amendment,
after the Civil War, Christian symbols were still everywhere.5 So
it’s clear that “We The People” intended that the Constitution allow those
symbols to remain. The secular papacy didn’t care what “We The
People” had intended. It had its own agenda.6
The
secular papacy speaks for "fundamental law" which it pretends is a
legal concept. Its “fundamental law” is simply the religion of Acluism. It uses all the powers of the federal government
against rival religions. It does exactly what our founders intended the First
Amendment to forbid.6
TRUE BELIEVERS
The
First Amendment has fallen on hard times. We adopted it to keep the federal
government from abridging our religious freedoms. We adopted it to keep the
federal government from imposing an official religion on us. Federal judges are
part of the federal government. For about fifty years they have abridged our
religious freedom. They have made Acluism the
official religion of the
Acluism disavows any belief in God. Its adherents claim
that any public policy that mentions God violates the Constitution. This, of course,
would be a big surprise to the people who wrote the Constitution.5
The
Supreme Court has not yet endorsed every detail of the ACLU religion. For
example, it has not yet ordered the U. S. Mint to stop stamping "In God We
Trust" on our coins. It could push us only so fast. But Acluism’s advance guard is working the long range plan.
It
recently found a shocking offence to the bogus first amendment in
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AA
has long offered the most successful program available to treat alcoholics.
Those who stick with the program usually quit drinking for years, decades, or a
lifetime. And the only cost is whatever you can afford to put in the coffee
fund. AA indeed has a spiritual component. It teaches trust in God, whoever or
whatever you conceive Him to be. However, AA is about as non-sectarian as you
can get. You can believe that the ACLU is God and that is perfectly all right
with the folks who run AA. You would think that the ACLU would be grateful. Fat chance.
The
Ohio ACLU spokesperson said that higher courts had already ruled in favor of
its position. "It (AA) has a spiritual component, which many courts have
held is unconstitutional," she said. She threatened to haul the local
judges before a higher power if they did not cease and desist. One or two of
them grumbled in public for the voters. After that I guess they knuckled under
and quit sending addicts to AA meetings.7
Nine
times out of ten, the ACLU wins through intimidation. Most state and local
officials know that federal judges are in bed with it. They don't want to be slapped
down by a federal court. That might ruin their careers.
THE TWO GREAT COMMANDMENTS OF ACLUISM
We
have seen how Supreme Court justices, following advice in The Prince,
have long assumed the role of high priests. This made them feel much more
secure and it also increased the scope of their power. As high priests, they
could base court orders on their own religious beliefs, not on the laws passed
by the people. That made their power almost limitless. We have also seen that
the justices have long tried to cripple religious rivals. They use federal
power to enforce ACLU dogma. It's time to take a look at that dogma.
ACLU
dogma has two main themes. Robert Bork, in his book Slouching Toward Gomorrah, called those two themes "radical
individualism" and "radical egalitarianism." Bork was describing
what he called “modern liberalism.” Law and public policy, not religion, are
Bork’s specialties. I’m sure he realized that the ACLU was part of modern
liberalism. But I doubt that he thought much about the religious aspects of the
problem. I don’t think he knew he was describing Acluism's two great commandments.8
After
careful research, I concluded that Acluism, like
Christianity, has two great commandments. I never could find that written down
anywhere. So I worked out my own statement of the two great commandments by
studying ACLU policies.
Radical
individualism describes the notion that anything old-fashioned religions
consider to be sinful is holy, good, and protected by the bogus constitution.
It is the theme of the first great commandment of Acluism.
My
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research led me to state that commandment as follows:
"There
is no God. Or if there is, He's the enemy. Therefore, you must oppose His laws
and His values.”
This
is quite similar in form, but almost opposite in meaning, to the First Great
Commandment given by Christ:
"You
shall love the Lord your God with all your heart, and with all your soul, and
with all your mind."9
The
second great commandment of Acluism is based on the
theme that Bork calls radical egalitarianism. It says that the whole idea of
merit is evil and wrong. Everybody deserves the same degree of success and the
same rewards. Talent, effort, and behavior do not matter at all. The second
great commandment, therefore, says:
"You
shall take from those who work and produce to keep those who do not from falling
behind. And you must punish the innocent and reward the guilty."
The
second great commandment of Acluism is obviously a
parody of Christ's Second Great Commandment, which says, "You shall love
your neighbor as yourself."9
My
research also disclosed that all the world’s great religions have, at their
core, something very similar to Christ’s Two Great Commandments. They all teach
that one must trust in God and follow the Golden Rule. So Acluism
opposes all mankind's great religions, not only Christianity.
The
Supreme Court has embraced Acluism’s two great
commandments for about fifty years. You can see the results of that embrace in
First Amendment rulings. You can also see it in rulings concerning crime,
abortion, pornography, gay rights, and many other areas. We’ll review some of
those areas in later chapters.
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CHAPTER
12
SPIRITUAL
AND MORAL GUIDANCE
The
secular papacy has long embraced Acluism and imposed
its dogma on
During
the 1990's, about one-third of our babies were born to unmarried mothers. The
"families" thus produced often required public support. The daughters
in those "families" bred other welfare families. Many of the sons
embarked on careers of violent crime.1 About
half our children lived without a father. About half of all marriages ended in
divorce.
Few
doubted that these social ills could destroy our society. So various public
figures had a lot to say about the causes.2 Many
of their ideas were partly right. But they all left out the most important
cause. They never mentioned our secular papacy. The use of its power to impose Acluism on us all was a major cause of the decay of our
culture. Let’s review some arguments which support that claim.
PRIVACY ZONES AND SYMBOLIC SPEECH
In
1965, the
Justice
William O. Douglas wrote the majority opinion. He collected a hodge podge of bits and pieces to
support it. For example, he cited the Third Amendment which barred the Federal
government from quartering soldiers in private homes during peacetime.3
Douglas’s opinion had to include a hodge podge of stuff because, at that time, neither the real
Constitution nor the bogus one contained any support for it. The Supreme Court
was starting a completely new line of usurpation.
Nevertheless,
In
1973, the Supreme Court decided two "landmark" abortion cases, Roe
v. Wade
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and Doe v.
The
You
might think that freeing up the sale of contraceptives and abortion services
would have reduced the illegitimate birth rate. That was an expected ‘benefit’
of the rulings. It didn’t work out that way. The Court decided Griswold v.
Connecticut in 1965. It handed the abortion rulings down in 1973. In 1960
about 5 percent of births were out of wedlock. The rate went up to 11 percent
in 1970, 18 percent in 1980 and 31 percent in 1991. It was 32 percent in 1997.1
Admittedly,
the two rulings were not the only causes of the extra illegitimate births. But
one can present a cogent argument that they were partial causes. Recall that
the judges have long assumed a role as high priests. Those decisions came from
the secular papacy. While parents and old-fashioned clergy taught restraint,
the secular papacy said that free love was holy and good. It was in keeping
with “fundamental law.” Young people acted on that guidance.
The
secular papacy did what it could to make free love normal. Sure enough, it
became normal. The judges had hoped to fix things so that free love would not
result in babies, especially illegitimate babies. The illegitimate birth rate
zoomed.
Its
pornography rulings had similar effects. For 150 years, judges had recognized
that our founders only intended the first amendment to protect political
speech. But then, in 1959, the
The Supreme Court, in the 1960's and 1970's, kept very busy finding
porn to protect. On one day, in 1966, the
The
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slowly replaced by Acluism’s
first great commandment.
A
justice named Hugo Black objected. Black pointed out that The First Amendment
only protects free speech and a free press. And none of that stuff was either speech
or the press. Most of the other judges just smiled. The First Amendment was
whatever they thought expedient. They could rule that it protected human sex
with alligators, if they wanted to.
The
justices also enjoyed porn themselves. Over the years, the secular papacy
collected a closet full of dirty movies that had been submitted as evidence in
porn cases. The Burger court had a regular "movie day" when the
princes and their attendants went down in the basement of the Supreme Court building
to enjoy the evidence.4
Even
if the courts did not protect porn, it would still be around. But it would not
be present in such vast quantities. A majority of voters do not want their
children exposed to it. So elected officials in local
communities would keep the lid on.
Judicial
malfeasance in this area has at least been good for the economy. Porn has
become a very big business. In the mid 1990's the hard core porn industry alone
took in about $10 billion per year. Graphic violence and soft core porn had
become the main themes of movies and TV. Here we’re talking hundreds of
billions of dollars each year.
Everything
comes with a cost. The down side of porn is the destruction of our values. As
the end of the 1990's approached, the distinctions between “hard core” and
“soft core” porn became less and less clear. Movie makers were pushing to
obtain “R Ratings” for graphic perversion, thus forcing it into the cultural
mainstream.5 Careful students of the matter claim that this sort of
material has inspired legions of rapists and child abusers.6 So the
trade off is clear. Profit for pornographers is the benefit. The destruction of
public values is the cost.
In
a republic, the people have the right to make that sort of cost-benefit decision.
However, having nullified our right to a “republican form of government,” rogue
judges made the decision for us. They wrote protection for porn in the bogus
constitution. “We the people” never put it in the real Constitution. It’s not
there.
NAKED VIEWPOINT DISCRIMINATION
Renegade
judges tried their best to save us from too many illegitimate births. They
cleared the way to prevent conception by protecting the sale of birth control
devices. Then they gave us abortion to kill off the babies before they were
babies, so to speak. It didn't work out exactly as planned. The number of
legitimate births dropped off a bit. But the number of babies born
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out of wedlock went up six fold. However, renegade
judges still had other Acluist ideas to try.
Their
next idea was to promote what advocates call “gay rights.” Then the percentage
of people who indulge in normal sex would go down. Whatever “gays” indulge in, does not produce babies.
Western
culture has regarded “gay” practices as unnatural, perverse, and sinful for
about 3000 years. In the Old Testament, Leviticus sternly condemned them. They
have been illegal at most times and in most places. All 50 states outlawed
those practices until 1961.7 Recently,
however, courts have been finding that fundamental law protects them.
In
1996, a federal judge struck down an
Turn
back to the Appendix. See if you can find anything about naked viewpoint
discrimination in the First Amendment. I didn’t think so. The judge must have
been talking about some other first amendment. Maybe he was talking about the
first great commandment of Acluism.
The
Hawaiian Supreme Court, in 1996, ruled that “gays” had a right to marry each
other.
The
U. S. Supreme Court, in 1997 (Romer v.
Evans), struck down a provision, added by the people of
The
Court said it had no “rational basis” and was “born of animosity toward the
persons affected.” Laws against murder, burglary, and rape are clearly “born of
animosity” towards the murderers, rapists, and burglars. So the “animosity”
part must not have been the fatal flaw. It was the lack of a “rational basis.”
The people of
Only
the secular papacy can write religion-based values into the law. And it
considers Acluism to be the only “rational” religion.
Political decisions of “We the People,” which are corrupted by the values of
any other religion,
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violate “fundamental law.”
Romer v. Evans was a complete farce. “Gay”
practices were illegal in every state of the union until 1961. The
Constitution, the Bill of Rights, and the Fourteenth Amendment were all
ratified before 1961 by the people of the various states. Yet courts claim that
protection for “gay” practices is in the Constitution and in some state
constitutions.
Like
vandals busting up stained glass windows in a cathedral, renegade judges are
trashing values held by “We the People” for hundreds of years. For the last few
decades, we’ve been slowly retreating from those values. But we never amended
our Constitution to discard them. We never put “gay rights” in our
Constitution. The judges put it in theirs.
SO WHERE DO WE GET A VILLAGE?
We've
heard much liberal wailing about
Liberal
academics tell us to blame cars, or TV, or too much job mobility for the demise
of our villages. They may also have other reasons on their list. However, they
never mention the main reason. They never mention outlaw judges.
Federal
courts have long imposed cultural pollution on our cities, towns, and villages.
They attacked our attempts to exclude or control crime. They took away our
ability to exclude or control porn, abortion clinics, topless bars, and sexual
perversion.
What’s
the point of having a community if it must have all the same defects as the
world at large? The ability to build barriers to threats and dangers in the
outside world was the main reason that mankind first gathered into villages. It
was also a primary motive for our adoption of the Bill of Rights. Renegade
judges stole that ability away from us. They removed the benefits of
communities.
In
the late 1990's, American communities suffered a rash of murders in their
public schools. Perverse teen age cults grew up inspired by violent porn. You
may recall the
Spokesmen
for the media denied any responsibility. Various liberals echoed the denial, blaming guns instead.14 Nobody mentioned
the root cause of the
The
Court spent decades smashing down barriers to paganism in
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CHAPTER
13
HAVE
YOU NOTICED THE NEW ERA?
The
prophets of Acluism needed to attend to certain long
range concerns. They didn’t want their religion to disappear in a few decades.
Most of the world’s great religions have been around for more than a thousand
years, several for twice that long. It’s prophets
wanted Acluism to be a great religion too.
If
you’re going to create a movement that joins the world’s great religions, you
need to make some rather profound changes in the society in which you operate.
Therefore, Acluism was designed to force basic
changes on American society. No set of customs is more fundamental to a culture
than the area of gender roles and identity. So Acluism
set out to destroy our society’s traditional attitudes in that area.
Acluists have long opposed single-sex-education. They hold
that it’s unjust and unnatural. One can find many good arguments to the
contrary. And many Americans, perhaps most Americans, do not agree with their
position on that issue. If, and when, most Americans do agree, they can pass
laws to end single-sex schools any time they like.
The
prophets of Acluism don’t care whether the people
agree or not. They’ll just persuade courts to impose the desired changes. They
assume that we’ll accept whatever the judges say. After a generation or two, we
won’t remember anything else.
Accordingly,
the feminist lobby recently persuaded the Supreme Court to order the Virginia
Military Institute (VMI) to admit girls. Virginia Military Institute had
existed as a state-funded military college for 150 years to train young men in
discipline, toughness, and military skills. Its training methods had produced
many famous generals. Until 1997, the college didn’t admit girls,
it thought that having girls around would destroy the culture that allowed its
training methods to work. Of course, destroying that culture was the feminist
lobby's real goal.
In
1997, the Supreme Court ordered VMI to scrap its 150 year-old culture. The
Court said that the Fourteenth Amendment demands gender equity in every
state-funded program unless the state has a politically correct reason to deny
it. That is not an exact quote, but it captures the justices’ meaning.
Let’s
play with the following idea. Suppose the people had been warned, back in 1868,
that the Supreme Court would one day use the Fourteenth Amendment to force VMI
to admit girls. Do you suppose they would have allowed it to be ratified as
written?
No
way! The people back then would have thought girls in military
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school was a terrible idea. They also did not trust
the Supreme Court, which they viewed as “a diseased member of the body
politic.” We had just suffered through a Civil War in which some half-million
people died. The Supreme Court had helped cause that
war.
Don’t
get me wrong. I don’t really care whether VMI has to admit girls. The world is
changing. If the people want places like VMI to change too, that’s fine with
me. My only problem with the VMI ruling is that it’s fraudulent. I expect the
Supreme Court to uphold the Constitution. The Fourteenth Amendment has been on
the books since 1868. And VMI was keeping out girls even before that. So how
come it took 129 years to discover that the Amendment requires VMI to change
its ways?
GENDER EQUITY
In
1866, Congress proposed the Fourteenth Amendment. The states ratified it in
1868. So it then became part of our Constitution. The Fourteenth Amendment was
not a good example of gender equity. It contained a flagrant bias in favor of
males. Turn back to the Appendix and see for yourself.
Now
let's try to understand this. The U. S. Supreme Court, after a serious talk
with lobbyists from Acluism, said that the Fourteenth
Amendment demands gender equity. However, the Amendment itself denies gender
equity. The Fourteenth Amendment violates the Fourteenth Amendment. How can
this be?
In
1920, 52 years after the Fourteenth Amendment supposedly mandated gender
equity, the states ratified the Nineteenth Amendment. The Nineteenth Amendment
ordered that women have the right to vote. That's all. It did not mention
gender equity except in voting rights. Furthermore, nobody explained why we
needed the Nineteenth Amendment in 1920 if the 52-year-old Fourteenth Amendment
already required gender equity.
Groups
that had promoted the Nineteenth Amendment then began working to get an
"Equal Rights Amendment (ERA)" passed. They said that we needed it to
insure gender equity. They continued their effort for decades.1
For
a long time, the public didn't buy the ERA idea. However, by the early 1970's,
its time seemed to have come. Both major parties supported it. In 1972 both
houses of Congress passed the ERA by big majorities. All that remained was for
the states to ratify it. At first it seemed that would be no problem. Everyone
liked the idea of equal rights in the abstract. So, for a while, things sailed
right along.
But
then somebody said: “Hey. What do you suppose the Supreme Court might do with
the ERA? Look at what the Court’s been doing lately without it.” This caused a
lot of people to rethink their views on the ERA. They had
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many fears. It looked like the ERA would outlaw single
sex public schools. Maybe the judges would also use it to order an end to the
tax exempt status of single sex private schools. They might even require single
sex public toilets.
Maybe
they would use it to order the states to pay for abortions. Maybe they would
require the army to draft women and send them into combat. People had told
pollsters that they favored equal rights for women. However, when they heard
what the judges might interpret that to mean, they changed their minds in a
hurry.1
The
voters did not have a direct say in whether or not their states would ratify
the ERA. Only their state legislators got to vote on that. However, in some
states, the people did have a chance to vote on gender equity. Those states
considered adding ERA’s to their own constitutions. Voting on proposed state
ERA’s gave “We the People” a chance to show what we really thought about the
federal ERA.
The
people listened to both sides. When the time came to vote, they had changed
their minds. They voted down the
Like
the state ERA’s, the federal ERA lost its appeal to the voters when they heard
what the judges might do with it. The drive to ratify it came to a screeching
halt.
When
the people refused to amend the Constitution to require gender equity, Supreme
Court justices decided to do it for them. They said, in effect, ‘to hell with
“We the People.” If they won’t give us the ERA, we’ll just discover it in the
Fourteenth Amendment.’
A NEW CRITTER HAS EVOLVED
You
might be surprised to learn that a Supreme Court justice admitted they slipped
the ERA, which the people had rejected, into the bogus constitution. She didn't
use exactly those words. But she admitted it.
In
1997, Justice Ruth Bader Ginsburg paid a visit to the University of Virginia Law School. There she was quoted as saying that
she still wanted the ERA in the Constitution as "a symbol." However,
Justice Ginsberg allowed
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that it didn't really make much difference. She said
that "what has evolved" was pretty much the same as the ERA.2
Justice
Ginsberg had written the VMI decision. Her opinion said that the Fourteenth
Amendment outlawed almost any state action or program which did not treat men
and women the same. The Supreme Court could bless different treatment for men
and women in cases where they felt that it was politically correct. In any
other cases, the Fourteenth Amendment sternly forbade it. The foregoing, of
course, is not an exact quote, but it’s close enough.
If
the VMI opinion is based on the Fourteenth Amendment, in the real Constitution,
Ruth Bader Ginsberg is Helen of Troy. Maybe the ruling was based on the bogus
constitution. Or maybe it was an amendment to the bogus constitution. It
doesn't really matter. The justices all took an oath to uphold the real
Constitution. All those who voted for the VMI ruling violated that oath.
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CHAPTER
14
THE
GRAND INQUISITOR
Our
secular papacy has long stood in open defiance of the First Amendment, a highly
visible part of the Constitution. So far, this has not caused it any major
problems. The people have been taken in by its various deceptions. However,
once in a while they read the real Constitution. The “great beast” could
someday get wise. Then there’s no telling what it might do. The real
Constitution poses a potential threat to our judicial branch of government.
This
situation reminds me of an anecdote from literature. Please indulge me while I
share it. You might find it amusing. Dostoyevsky's classic novel, The
Brothers Karamazov, has a scene in which the older brother, Ivan, tells his
younger sibling, Alyosha, about a story he has
written. The story is entitled "The Grand Inquisitor." It is set in
the era of the Spanish Inquisition, during which
Ivan
explains that one day Jesus Christ visited the Spanish city of
The
old man lectured Christ for coming back to interfere with the work of his
Church. He said that the Inquisition had greatly improved on his message and
didn’t need its author coming around to confuse the people. So, regrettably,
they would have to burn him at the stake as “the worst of heretics.”
Think
of the wisdom in the real Constitution as analogous to that spoken by Christ.
Think of the
The
prophets of Acluism have long kept our Constitution
locked up in a museum and replaced it with an imposter. They teach the people
that it has “evolved” into the imposter. However, with each
passing decade, the imposter gets bigger, more grotesque, and more obviously a
creation of judges. Sooner or later, our secular papacy will have to
entirely abandon the fiction that it follows the Constitution. Our “living
Constitution” will have to die and be buried.
Of
course, the Supreme Court won’t execute it for heresy. That would be much too
clumsy. The prophets of Acluism will tell us it has
become extinct. It was less “fit” than the imposter.
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BOOK
III
EQUAL
CHILD ABUSE
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CHAPTER
15
VIKING
JURISPRUDENCE, PART 2
Most
of us recall the wise little sayings our parents used to teach us various
lessons. One of my father’s favorites was, “the road to hell is paved with good
intentions.” In the 1950's, our national capital ran rife with “good
intentions.” Earl Warren caught the mood when he arrived in 1954 to assume his
seat as Chief Justice of the U. S. Supreme Court.
A
decade or so earlier, during the first few years of World War II, Earl had led
efforts to lock up thousands of Japanese-Americans in concentration camps. We
were also at war with
Nevertheless, we didn’t try to lock up all
the German Americans.1
One
can’t avoid the conclusion that Earl Warren got ahead by pandering to racists.
However, in
Linda’s
lawyers argued that the Fourteenth Amendment says the states must offer “equal
protection of the laws” to “all persons.” The “persons” our founders wrote the
Amendment to protect were Blacks. And two miles was hardly equal to four
blocks. It seemed that Linda had a pretty good case. It got to the Supreme
Court about the same time Earl Warren did.
The
Topeka Board of Education’s lawyers responded with proof that the framers of
the Fourteenth Amendment did not intend it to affect public schools.2
They found records of many speeches in which the
framers made that clear. The Board’s lawyers also produced records which showed
that most of the states (including Northern states) had segregated schools when
they ratified the amendment and maintained them for many years thereafter.
They
also pointed out that Congress kept the
The
Board also pointed out that the Fourteenth Amendment expressly
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allowed the states to deny the vote to black people.
The framers of the Amendment could not have intended to mandate integrated
schools and yet withhold black voting rights. That idea was ludicrous.2
Right
thinking people thought that the time to abandon the racist policies of 1868
was long since past. But the framers clearly did not intend the Fourteenth
Amendment to affect public schools, at least not without further action by
Congress.
However,
by 1954 Congress had not taken, and did not seem ready to take, the necessary
action. Therefore, most of the nine men on the Court, including the new Chief,
resolved to take it for them. They knew they were usurping Congress’s powers,
but their new Viking Chief stiffened their resolve.3
He
said that the mandate of the Constitution didn't matter. "We cannot turn
back the clock to 1868."
This
distressed at least one member of the Court. He was worried about his oath to
uphold the Constitution. Justice Robert H. Jackson reminded the others that the
Fourteenth Amendment gave enforcement powers to Congress, not the courts. This
was a step that only Congress could legally take, he said. He also predicted
that the decision would lead to “two generations of litigation.”4
That prophecy was right on the mark, wasn’t it?
However,
Earl Warren said that the ruling was going to come down whether
A VIKING DREAM
Back
in 1941, a young woman named Evelyn B. Granville graduated from the
In
1954, along with Brown v. Topeka, the
The
Fourteenth Amendment only applied to the states. That was clearly
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stated within the Amendment itself. The Court needed a
different pretext to integrate the D.C. schools. So it said that the due
process clause of the Fifth Amendment also forbade segregated schools.
The
Fifth Amendment was adopted back in 1791 at a time when the Constitution
allowed slavery. Maybe our founders met in the great beyond and revised the
Fifth Amendment. Then they came to the justices in a dream and gave them the
news. Prophets get messages from Heaven in dreams, don't they?
There
is a certain irony in the use of the due process scam to integrate public
schools. You will recall that the Supreme Court invented the scam prior to the
Civil War in its Dred Scott decision. It said, in
that decision, that the descendants of African slaves could never become
citizens. The
The
Warren Court’s dream created a nightmare for the black people of Washington,
D.C. Middle class whites in the city responded to the actions of a lawless
Supreme Court by voting with their feet.6 The people who remained
were unable to sustain the quality of life in the city, much less the quality
of the public schools.
By
the 1990’s, the D.C. public schools had long been among the least successful in
the United States.7 Fifty percent of the city’s young, black men
were in jail, on parole or probation, out on bond, or sought on a warrant.8
ALL DELIBERATE SPEED
Now
let’s briefly review the Brown ruling’s impact on Southern public school
children. To get all nine judges on board, Earl Warren had agreed to hand down
a ruling with no deadline for compliance. Linda Brown and the other plaintiffs
were denied relief.
In
effect, the
The
1954 rulings were clearly racist. Their premise was that the rights of the
black plaintiffs didn’t matter. What mattered to the Court was the social ideal
of equality for a race, not justice for the plaintiffs. If equal protection of
the law meant anything in this case, it meant that the black plaintiffs must be
admitted to their nearest public schools, right away. The only reason for the
Court’s failing to so rule was political rather than legal.9
“All
deliberate speed” turned out to mean at least a ten-year delay. By 1964, only
1.2 percent of Southern black public school children went to school with white
children.10 That year, Congress passed the
Civil Rights Act of 1964,
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which took care of the problem fairly quickly. By
1968, 32 percent of Southern black children went to integrated schools. And, by
1972, over 90 percent were doing so.10 After
an entire decade, the Brown decision had accomplished nothing. Then legitimate
action by Congress took care of the problem within eight years.
After
1964, no further Supreme Court action was likely to be useful.11
However, the Viking Court was still determined to impose “two generations of
litigation” on America. One hundred years after the Fourteenth Amendment was
ratified, the
Two
different 1968 cases involved Southern school districts that had allowed black
and white families to pick their children’s schools. The districts offered to
bus the children if their parents chose a school far from home. In both cases,
about 20 percent of the Blacks chose to attend formerly all white schools. No
Whites chose to attend the formerly all black schools.12
That
wasn’t good enough for the
The
Court ordered that about half the Whites be bussed to the all black schools.
And a lot of Blacks were forced to ride busses to formerly all white schools.
Earl Warren was still a racist, and he had lots of company. Both opinions were
9-0.
The
1968 rulings began three catastrophic decades during which federal judges
destroyed
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CHAPTER
16
THE
HOSTAGE THEORY
Back
in the 1950's, most black children received an inferior education in
White
children, in the 1950's, got an excellent education in our big city schools.
Now most children, black and white, receive an inferior education in
Failed
urban public schools helped produce a black ghetto whose residents evolved
their own language. Having failed to teach English, school bureaucrats in
A
question comes to mind. What caused the quality of our big city schools to go
from excellent to pathetic in a few decades? Various experts will give you a
long list of reasons, but they’ll never mention the main one. Public mention of
that reason would end the career of an educator or a politician. So they all
practice denial.
Our
urban public schools went from excellent to pathetic because of the actions of
a lawless federal judiciary.
CRACKING DOWN
We
discussed the Brown v. Topeka ruling in the last chapter. You now know
that the Constitution did not require that ruling. It was driven by the values
of elites who had influence with the judges. Most of the public did not yet
share those values, although public opinion was moving in that direction.
The
Brown decision served important values. And it now enjoys a high degree of
public respect. So let’s accept it and move on. But let's keep two things about
it in mind.
First,
the Brown case was about busing. The Topeka School Board had required Linda
Brown, because of her race, to ride a bus two miles rather than walk four
blocks. That injustice caught the public attention. And it helped gain
acceptance for legislation by judges. Second, the Brown ruling ordered that
students be admitted to public schools "on a racially nondiscriminatory
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basis."
The
Supreme Court soon junked that idea. And it soon lost its distaste for forced
busing based on race. Following its direction, federal judges ordered millions
of school children, white and black, to do the same thing the Topeka School
Board had forced Linda Brown to do. They ordered them all to ride school buses
miles past their neighborhood schools. And they selected the victims by race.
Many of them were six, seven, or eight years old.
The
justices’ motives had nothing to do with the Constitution. They acted out of
wounded pride. In the South, the states had not offered much response to the
Brown ruling. Sometimes they even used state or local police power to keep
things from changing. The South resisted school integration until Congress passed
an effective civil rights law in 1964.
In
many Northern cities, black and white children also went to separate schools.
They lived in separate areas of town. And they went to school near home.
Northern school boards didn’t see a reason to do anything. As far as they knew,
the Brown decision didn’t apply to them.
By
the late 1960's, the lack of response made the buccaneers on the
In
addition, liberals were now agitating to force school integration everywhere.
In many Northern cities, Whites and Blacks lived in different sections of town.
Whites tended to have higher incomes, therefore they
could afford the new homes being built in outlying areas. Children went to school
near home. Public school segregation resulted from the free choices of
individuals pursuing their own goals within the constraints of their family
budgets.
Beginning
in 1968, the Supreme Court expressed its anger by ordering hundreds of public school
systems to integrate, no matter what the cost in resources or damaged lives.
The Court’s tool of choice was forced busing.
Federal
courts ordered massive crosstown busing programs all
over
The
idea behind forced busing has been described as the "hostage theory."2
Most citizens, black and white, supported the idea of equal access to public
schools. Most white parents were willing for their children to have black
classmates. But it was not their top priority. So the judges decided to get
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their attention. Federal courts took their children
hostage and demanded a ransom. They demanded payment in the form of support for
their own social agenda. The ransom note said, in effect: we’ll make your
children suffer until you make our plan work.
Judges
asserted that the busing programs were required by the need to uphold the
Constitution. However, forced busing based on race was contrary to the plain
language of the Constitution. It was also contrary to everything said by the
people who framed the Fourteenth Amendment, even those who took the broadest
view of its meaning.
But
at least our judiciary occupied the high moral ground. It was only trying to
serve the ideal of racial equality. Right?
Wrong.
While the Supreme Court was upholding forced busing programs, its members ran
their own shop like a plantation. You can read about it in the book, The
Brethren, by Woodward and Armstrong.3 All the high-ranking Court
employees were white. All the lowest ranking workers were black. And the
justices treated the Blacks like serfs.
They
forced black workers to provide personal service to them on the workers' own
time. Justice Douglas was the worst offender. He ordered black Court workers to
drive him around, clean his home, and do his shopping. Black cleaning women
lived in fear of being fired if they broke anything. Within the Supreme Court,
racism was plain to see. That racism mocked the judges’ claim to be acting out
of high ideals. They were acting out of concern for judicial power.
THE CONSENT DECREE SCAM
It's
probably worth pointing out that renegade judges don’t deserve all the blame
for the ill effects of forced public school integration. They had accomplices.
The nominal plaintiffs were usually school children, but they were just pawns.
The real plaintiffs were special interest groups composed mainly of liberal
social engineers and trial lawyers. In some cases, liberal public school
insiders also helped them out. The defendants played dead while the
lawyer-lobbyists suing them “proved” that local public schools had once been
segregated on purpose.
No
party to the case had a motive to debunk the "proof." The busing
orders would victimize local children and parents who had no way to play a role
in the legal process. They had to rely on the public school bureaucrats. The
bureaucrats, however, often wanted to lose the case. They were in favor of
costly boondoggles. Taxpayers would have to put up the money and they would get
to spend it. Their own children went to private schools or all white public schools
in the suburbs.
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None
of what I have just said is any big secret. It’s well known that bureaucrats
often sell out the public and help position judges to legislate in order to get
a budget increase. You can read about this in a book written by Richard Posner,
a federal judge. Posner suggested that judges played the game because they
enjoyed the “patronage” and they were sometimes “drunk” with power. “Patronage”
means that the judge gets to misuse public funds to give high paying jobs to
his unqualified friends.4
School
busing cases helped lobbyists and judges develop and refine the consent decree
scam, a way to sneak a political deal into the law. As its name implies, a
consent decree is a court order to which the defendant has consented. The scam
works really well when the defendant is an elected body like a school board.
I'll describe its basic outlines below.
A
plaintiff, who aims to force a policy change opposed by the people, sues in
court. He claims that the court must order the change to satisfy the
Constitution. The defendant likes the proposed change. It will raise his budget
or get him out from under the control of the voters. So he plays dead. He
allows the evidence presented in court to be biased in favor of the plaintiff's
claim. The judge may also favor the proposed change. He moves in the same
social circles as the lawyers for both the plaintiff and defendant. They all
share the same love for social engineering.
Only
the people oppose the change. But they don't get to vote. This is not a voting
matter. This is a matter of a duly ordained federal judge doing his sacred duty
to the bogus constitution.
The
defendant and the plaintiff make a deal. They agree to spend millions of
dollars of the people's money. Or maybe they agree to set aside hundreds of
jobs, or bus thousands of the people's children all over the place. The
defendant doesn’t care about any of that. It's not his money. They're not his
children. The money, jobs, and children belong to the taxpayers.
The
judge signs a court order giving the deal the force of law. So the results of
that consent decree will bind the people for decades. The lawyers then call a
press conference. They say "thank God. We are now following the
Constitution." Then the judge and the movers and shakers on both sides
wink, shake hands all around, and go to lunch. The next summer they attend each
other’s daughters’ weddings.
The
people grumble, but they accept the result because they respect the
Constitution. Nobody tells them the truth. Nobody tells them their school
busing program is just another smelly political deal. The media helps with the
cover up.
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CHAPTER
17
FORTY-SIX
FELONS ON THE PAYROLL
The
problem of our failed public schools has long been a hot topic in
In
1976, a federal judge took over control of the
In
1954, at the time of the Brown decision,
In
1976, Federal Judge Frank Battista signed the consent decree. It ordered the
school board to bus thousands of kids across town and to take a long list of
other actions. It also ordered the board to pay a big chunk of other peoples’
money to the lawyers. The judge later replaced that consent decree with one
that included the State of
The
consent decree remained in force until 1996. Then the local federal judge threw
in the towel. During the life of the decree, the schools had gotten steadily
worse. He didn’t want to be holding the bag when the people finally figured out
why.
During
the two decades it was in force, the consent decree created a rather comical
Catch 22. It ordered the
■ It ordered that thousands of school children be bused miles
from home.
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It’s well known that most successful schools depend on involved parents. Forced
busing ended parental involvement in many
■ It forced the Board of Education to spend a fortune on
buses, drivers, lawyers, and various “experts” of highly doubtful value. It
wasted money that should have been spent on teachers and books.
■ Forced
busing and the waste of their tax money drove middle class families out of
■ Many of the good teachers left too. Capable workers do not
stick around where merit and performance don’t count. They do not stick around
where the rules prevent them from doing good work. They do not stick around
where they are placed under the supervision of people whom they do not respect.
The folks who left were replaced by a crowd of very doubtful merit. In early
1998, the local newspaper discovered that the Cleveland School System had
forty-six felons on the payroll.1
Each
year the decree was in force, the school district and the state fell further
and further behind in their efforts to satisfy all its terms. The harder they
tried, the further behind they got. Meanwhile, the civil-rights lawyers said
that the
The
State of
The
consent decree wasted a lot of money. Yet its impact on children has been the
real tragedy. A 1995 ranking of all the public school systems in
By
1997, the graduation rate in the
Around
the end of 1995, the plaintiffs' lawyers requested the removal, from the case,
of Judge Robert Krupansky who had replaced Frank
Battista after the latter's death. Krupansky said
that the lawyers complained only after he questioned their legal fees.5
A
little later, Judge Krupansky retired and Judge
George White took over the case. George ordered that the lawyers get their
money. The lead plaintiffs’ lawyer charged $340.00 per hour.5
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Now
let's sum up the results of the
Recall
that the consent decree in
About
7 percent managed to get a decent education. About 70 percent dropped out. The
other 23 percent graduated but were not really educated.4
Keep
that billion-dollar figure in mind. Also keep the 200,000 victimized students
in mind. The billion dollars divided by the 200,000 students
works out to about $5,000 per student. Remember that $5,000 number also. I'll
use it later to calculate a rough estimate of the total cost of forced busing
orders nationwide.
There’s
one other cost to keep in mind. Politicians and academics usually blame the
distress of northern big cities, that became acute in the
1970's, on cheap gasoline and two cars per family. They’re practicing
denial. Judicial tyranny was the main cause of the problem. The consent decree
was the main reason that middle class families left
Families
with children will try to live where they believe there are decent schools.
That has long been a bedrock rule of the real estate industry. Middle class
families would have left
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CHAPTER
18
THREE-BILLION-DOLLAR
TAJ MAHALS
The
story of the
In
1973, the Supreme Court heard the case of Millikan
v. Bradley. It involved public school busing in the
The
civil-rights lawyers argued more or less along the following lines. Your honor,
you can't avoid your duty to the Constitution. You’ve got to bus the white kids
back into
The
decision was appealed. After a few years, the case reached the Supreme Court.
By 1973, Richard Nixon had appointed a few justices who didn’t share the
So
far, forced busing orders had damaged mainly folks who were not likely to
create much of a threat to the Supreme Court. However, now the lower court
judges were getting ready to mount a new attack on tens-of-millions of suburban
Whites. That entailed a new and scary level of judicial risk.
In
1973, public opinion strongly opposed forced busing. Suburban Whites existed in
very large numbers. The had high voter turnout rates.
Some of them had already left the cities to escape the control of renegade
judges. Now the lower courts were coming after them. This time they might
fight. They might elect radicals who would force the Supreme Court to obey the
Constitution.
Only
four of the nine justices were willing to take that risk. In early 1974, the
Court decided 5-4 to overturn the order of the district court judge in
The
Court needed to give a reason. It said that no one had proved the suburban
districts shared the blame for
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this reason was only a pretext. Federal judges had
ordered states to pay for local busing programs. They had said education was a
state function. Local public school districts are creatures of the state. If
they were guilty of causing segregation, the state was guilty too. It was
guilty through neglect.2
The
majority could have used that same logic to order states to rearrange school
districts. According to that logic,
We
now come to
About
1977, “civil-rights” lawyers sued in Judge Clark's court. They wanted him to
order the State of
But
then somebody thought of a new scheme. The judge could reverse white flight by
blowing really big bucks on the
If
they still refused to come back, at least the local black kids would be well
educated. The public school bureaucrats assured Russell that the only problem
with inner city schools was lack of money. The judge took their word for it.
Russell
gave the bureaucrats a blank check. Between 1985 and 1995, they blew an extra
$1.6 billion in a school district with only 36,000 students. That’s about
$45,000 per student beyond what the district had already been spending. In one
year,
Judge
Clark was acting on a well-known principle taught by Machiavelli. Old Nick had
advised his students to do good, whenever they could,
with other peoples’ money.6
The
Supreme Court approved Russell’s plan. It was flagrantly unconstitutional. How
could a tax increase be anything but a legislative function? However, the level
of risk seemed OK to the Court. It was a lot safer
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than taking millions of middle class suburban kids
hostage.
This
probably will come as no surprise, but the big bucks plan didn’t work. Nobody
came back from the suburbs. And the public school bureaucrats threw all the
money down a rat hole. In early 1997, test scores for
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CHAPTER
19
IT’S
ALL YOUR FAULT
In
the last few chapters, we've seen that three decades of judicial efforts to
integrate our public schools have failed. Federal courts wasted enormous sums
of the taxpayers' money. Public school systems that they took over became much
worse, or stopped working entirely. They ruined the educations of millions of
children.
In
some ways, race relations seem to have gotten worse during this judge-imposed
disaster.1 The high priests of the federal
courts told black people that their children had a right to a good public
education. And the judges were going to make sure they got it. But they didn’t
deliver. The black kids’ educations did not get better. They got worse, much
worse.
The
judicial usurpation industry needed to deflect attention away from the
culprits. It needed somebody else to blame. So its spokesmen said that white
racism was to blame. They said we must force the white majority to shape up, no
matter what the cost or how long it takes. ‘The Constitution’ demands it.
We
saw earlier that the Constitution does not demand it at all. That claim has
always been a fraud. The story of forced busing is a story of courts carrying
out a political agenda. That agenda never had a basis in the Constitution.
Now
let's look at the claim that the American people are racist. Otherwise, they
would long ago have embraced the judges’ leadership. Let's look at two case
studies of another kind.
The
first concerns the field of major league sports. Perhaps you watched the 1997
World Series on TV. It was played between the Cleveland Indians and the Florida
Marlins. The Marlins won. So, that year,
I
noticed a lot of black faces when the Marlins took the field. Not having
anything better to do, I counted them. Seven out of nine starting players, on
the best team in baseball, were black. So you would probably agree that
Those
forty-nine black men still had to take a lot of abuse from bigots in and out of
baseball. Also, in 1954, there still weren't any black managers. That did not
happen until 1975. Nevertheless, it's a fair statement that, in 1954, major
league baseball was integrated.
Major
league baseball did not always welcome Blacks. Prior to 1947, they had to
maintain their own league in order to play. Everyone familiar with the game
knew that plenty of Blacks were good enough to play in the majors. But
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the major leagues had a whites-only rule. It wasn’t
written down; it was informal. But the most powerful people in the game
enforced it.
From
1920 to 1944, the Baseball Commissioner was a former federal judge named Kenesaw Mountain Landis. Baseball writers described him as
arrogant and a racist. Judge Landis made sure the Whites-only rule was
enforced. When he retired, a man named Branch Rickey decided to stick his neck
out. Rickey was president and general manager of the Brooklyn Dodgers. He
decided that it was time to end the rule against black players in the major
leagues.
Rickey
didn’t hire lawyers to contrive a fraudulent new rule in the Constitution. He
went at the problem in an honest way. And he risked, in the process, his career
and his investment in the Dodgers. Mr. Rickey had his scouts scour the Negro
leagues looking for a young black man with excellent baseball skills and
certain personal traits. Rickey wanted to change minds. He wanted to succeed.
He thought that success required a player who could perform with class on, and
off, the field. He sought a player who could take the abuse and yet behave with
dignity.
Branch
Rickey’s scouts found a young man in the Negro leagues named Jackie Robinson.
He wasn't the best black player around but he was one of the best. And Rickey
thought that Jackie also had the personal traits that were needed for the
project to succeed. Mr. Rickey brought Jackie Robinson on board in 1947. That
was seven years before Brown v. Topeka
Jackie’s
performance on the field played a key role in the Dodgers' success for the next
decade or so. During that time the team won several pennants. In one year it
won the World Series.
Jackie
also performed off the field as Mr. Rickey had hoped. Branch Rickey and Jackie
Robinson changed millions of minds and hearts. The only federal judge in the
story was Kenesaw Mountain Landis, the bad guy.
Baseball,
like most other pro sports, has long been integrated. Blacks and Whites get
along well together. Millions of white children esteem and admire the black
players. The story of pro sports gives the lie to the claim that most white
Americans are racist. That claim is an excuse to cover the failure of a
dishonest and corrupt program.
I
mentioned two case studies. The second one concerns the United States Armed
Forces. Until 1948, the Army and Navy had segregated units. In that year,
President Harry Truman issued an Executive Order ending the practice. Truman
acted partly from a political motive. However, he also believed that
segregation in the armed services was immoral and damaging to the national
welfare.3
Truman
offered no fiction about a need to follow the Constitution. He just issued an
executive order. There was a fair amount of grumbling about the White House forcing
the Army and Navy to change. Politicians predicted dire
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results. However, the soldiers and sailors all knew
that Harry Truman was Commander-In-Chief. The legitimacy of his order was
beyond question. So the officers and men not only followed that order. They
made it work.
In
February 1954, a young black man named Colin Powell graduated from
Colin
Powell, like Jackie Robinson, gave a class performance in a pioneering role.
Whites in
Pro
sports leagues and our armed forces both ended segregation. Both successes
resulted from legitimate and honest actions. And both enjoyed public support.
The efforts of lawless judges not only failed to achieve their stated goals,
they wrecked our urban public schools. And they badly damaged millions of
lives.
Why
did public school integration fail while the other two efforts succeeded?
Blaming the racism of the American people is part of a brazen cover up. The
attempt by federal courts to integrate public schools failed because it was not
legitimate. The people saw judicial lawlessness for what it was. So they
refused to cooperate.
ADDING UP THE SCORE
I
want to conclude this chapter by taking a look at the total picture. Let's
review the overall results of judge-mandated school integration. Let's look at
some numbers.
During
three decades, federal judges took over hundreds of public school districts. In
the process, they damaged the educations of most of the children who were
subject to their orders. That adds up to a lot of victims. For most of
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that period, about forty-five million students, give
or take a few million, were in
Each
of those nine million children, on average, stayed in the public schools for
about a decade. When one batch left, another replaced it. In thirty years, the
nine million victims turned over about three times. So 27
million ruined educations is a reasonable estimate.
In
We
know that 27 million is a reasonable estimate for the total number of students
affected by integration programs nationwide. We have settled on $5000 as our
estimate for the per-student-cost. Multiplying 27 million
times 5000 yields 135 billion.
Now
we should probably admit that a sizable minority of students in schools run by
courts somehow managed to get a decent education. And all the above numbers are
kind of rough anyway. We’ll just round off the estimates to $100 billion wasted
and 20 million ruined educations.
There
is growing alarm over the wage gap between those who are well educated and
those who are not. Lawless federal judges deserve some of the blame for that
gap. They ruined the educations of twenty million people. Most of the twenty
million are on the wrong side of the gap.
Ruined
public schools led middle class Whites to abandon dozens of large cities. This
wrecked the economies of those cities and the quality-of-life they could offer
to those who remained. Tax receipts went down and crime rates went up. That
caused most of the rest of the middle class to get out.
I
don’t plan to abuse you with more arithmetic. I won't estimate the cost of the
damage to the cities. However, you can bet that it’s a very big number.
The
results of this judicial bungling include badly damaged race relations in
America.1 Race relations were steadily improving prior to the
beginning of the forced busing programs. Those programs caused millions of
Whites and Blacks to become resentful toward each other.
There
is still more. One can make an argument that the desegregation programs damaged
the educations of most public school children, not only the 20 percent, or so,
who were directly involved. The desegregation programs warped our public
education priorities for more than a generation. The wasted $100 billion came
from state and local education budgets. Consequently, that
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money was not available to cover less exciting needs
all over the various states, needs like school maintenance and construction or
subsidies to poor, rural areas.
The
programs also corrupted our public education establishment. For more than three
decades it embraced a fraud in order to avoid political problems and increase
its cash flow. How could it help becoming corrupt? For those same three decades
its cost has been going up. And the quality of its work has been going down.
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CHAPTER
20
THOROUGH
AND INEFFICIENT
In
the late 1990's, federal judges began sneaking away from the mess they had made
of our public schools. But that doesn’t mean the schools will soon recover.
Special interest groups began working a new scam to keep them under the control
of judges. They filed “school funding equity” lawsuits in at least 35 states.
At last count, judges in 17 of those states had played along with the scam.1
The
American people have long wanted their public schools to produce well-educated
citizens without undue waste of tax money. So, in many states, they put
language in their constitutions requiring systems of “thorough and efficient”
public schools.
Now
let’s admit right up front that our public schools are not “efficient.” Maybe
they’re “thorough” enough. Public schools teach our children more subjects than
they ever did before. Some of those subjects are of doubtful value. In a few
cases, parents even view them as perverse. Therefore, many folks think our
public schools are too thorough. But hardly anyone thinks they’re efficient.
An
efficient process does what it’s supposed to do with minimum cost and/or
minimum waste of whatever resource it consumes. To confirm that, I went to a
library and checked every dictionary I could find. Five out of six emphasized
minimum cost and/or minimum waste.3
Public
schools are supposed to teach our children to read, write, and speak English;
to value our national heritage; and to demonstrate the skills needed for a
decent career. The resource the schools consume is tax money.
THE T&E SCAM
In
the principality of judges, every mishap or failure creates a chance for someone
to work a swindle in court. Our inefficient public schools led to a new swindle
that we’ll call the T&E scam. Lobbyists for groups that profit from higher
public school budgets hire a team of trial lawyers. The lawyers pick a friendly
state judge and sue the state, in that judge’s court, for more money. They
bring in “expert witnesses” who claim that it will take several billion
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more dollars per year to fix the problem. The judge
acts as expected. He orders that the people meet the plaintiffs’ demands.
On
behalf of the people, state bureaucrats appeal the verdict. In due course, the
appeal reaches the state supreme court. The outcome varies from state to state.
In some cases the swindle fails. The state supreme court
refuses to support it.
In
many other cases, however, the T & E scam becomes a version of the consent
decree scam. The state bureaucrats play dead. They bring in other “expert”
witnesses who say that the cost to fix the problem will be a billion or two
less than claimed by the plaintiffs. Then the state supreme
court either picks a number or the two parties make a deal. In due
course, your state taxes go up by several billion dollars per year to pay off
the plaintiffs.
THE JUDICIAL REMEDY
Keep
in mind the main reason the public schools were no longer efficient. They had
been ruined by federal courts. Nevertheless, the state judges had to follow
their own constitutions which mandated efficient public schools. So it might
seem that they had no choice but to fix the problem if they could. So far, so good. However, the fraud involves the fix they
foisted off on “We the People.” They ordered higher spending.
Higher
spending could not make the schools more efficient unless it somehow improved
results more than it increased costs. That outcome was (and is) most unlikely.
Let’s look at some data to see why.
■ During the twentieth century, inflation adjusted
■ In 1998, the Organization for Economic Cooperation and
Development (OECD) published a study of school costs and results in various
countries. According to the study, American public schools “add less value,”
and “do so at greater cost” than schools in other countries. Our public schools
produced the worst results, yet had the third highest per-pupil cost. That does
not support the belief that more money brings much better results.5
■ Every few years, a group named The American Legislative
Exchange Council (ALEC) issues a detailed report on the costs and performance
of each state’s public schools. According to ALEC’s
1994 report, the states that spent the most money, in 1993, tended to get the
worst results. Here
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again, I placed the detailed documentation back in the
Notes and Citations section.6
■ Between 1967 and 1990, average SAT scores fell from about
960 to about 895. Over that same time frame, average per pupil spending in
■ Please indulge me while I make the point yet a fifth way.
Numerous studies have compared
So
what does all this tell us? It would appear that the more tax money we give our
public schools, the worse they’re likely to perform. That statement, of course,
goes beyond what has been proven. Nevertheless, the data make a compelling case
that higher school spending does not improve results.
Judges
in numerous states have ordered their taxpayers to hand many extra billions of
dollars over to public school bureaucrats. Their orders will have the
predictable effect of making the schools even less efficient than they are now.
So the court orders are in flagrant violation of the state constitutions.
Lawless judges are still running our public schools. Don’t expect them to
improve any time soon.
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BOOK
IV
CRUEL
AND UNUSUAL CRIME RATES
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CHAPTER
21
VIKING
JURISPRUDENCE, PART 3
In
1939, Earl Warren took office as Attorney General of California. He had run as
a tough, law-and-order guy. Earl’s first high-profile crime busting crusade was
an attack on illegal gambling.
However,
Earl still saw a big problem. There was a lot of legal gambling going on. Four
casino ships were operating beyond the three-mile limit off LA and
In
this episode, the future Chief Justice placed an illegal wiretap. He also
attacked and vandalized businesses that the only relevant court ruling had said
were legal. However, the California Supreme Court then decided to cover his backside.
Months after the Viking attack, it reversed the earlier appeals court ruling.
The court said that the gambling ships were not really outside
Being
a law-and-order guy didn’t have much appeal in liberal
So
the
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the cops had violated their rights. It ruled in favor
of the crooks 64 of those 75 times.3 Many
of those cases rewrote the Constitution.
In
1961, in Mapp v. Ohio, buccaneer judges
rewrote the 170-year-old Fourth Amendment. When they were finished, it said
that no state could use "tainted" evidence in court.4
Tainted evidence turned out to be any evidence that a federal judge found distasteful.
The Fourth Amendment banned unreasonable searches or seizures so that the
people would be secure "in their persons, houses, papers, and
effects." The Fourth Amendment didn't say that tainted evidence could not
be used. It just forbade the government from doing the things that caused it to
get tainted.
Since
The
killer's lawyer claims that the cop did not have a good reason for the
“search.” So his client must go free. The judge agrees. Only a judge can decide
whether a search is reasonable. The cop had the gall to not consult a judge.
The last I heard, judges were not willing to ride around in police cars.5
The
Fourth Amendment guarantees a measure of security in our "persons, houses,
papers, and effects." It’s not obvious that the list covers a speeding
van. Our founders didn’t put horse-drawn carriages on the list. A car is the
modern analog of a horse-drawn carriage. Cars use the public streets. They are
the method of choice for criminals to escape a crime scene.
Do
you recall the saying, “a man’s home is his castle?” The Fourth Amendment
specifically mentions “persons, houses, papers, and effects” because that’s
what the founders intended it to cover. A legal principle dating to the
seventeenth century states, “the house of every one is to him his castle and
fortress, as well for his defence against injury and
violence, as for his repose."6
It
took the Supreme Court 170 years to get around to doing a lobotomy on the
Fourth Amendment. During all those years criminal courts made a lot of
mistakes. They often turned guilty people loose. They sometimes punished
innocent people too. Like all government functions, courts commit many
blunders. The people need to keep an eye on them and sometimes reform them.
During those 170 years, however, at least the stated goals of our courts
followed the design of our founders. Courts existed to determine the truth.
Courts were there to punish the guilty and to free the innocent.
The
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truth didn’t matter very much. Protecting the public
from predators didn’t matter at all. Freeing the innocent still mattered. But
that goal was served by also freeing the guilty. According to the new rules
laid down by the
Next
the
Surely
you’ve heard about "Miranda warnings." Back in the early 1960's,
somebody raped a woman in
It
took him about two hours to confess. There was no coercion. But his lawyer
argued that Miranda had not signed the confession "voluntarily, knowingly,
or intelligently." The lawyer didn’t claim that the police had tortured or
beaten him. Ernesto had just done something the lawyer didn’t think was very
bright. The
The
The
legislation didn’t do Ernesto much good. He only got off the hook for a while.
They tried him again, without the confession, and convicted him anyway.10
However, the sixty-one page manual became part of the bogus constitution.
According
to a column in USA Today, a law professor named Paul Cassell
has estimated that “Miranda warnings” had prevented police from solving up to
435,000 crimes each year.11
In
1999, appellate judges appointed by Reagan and Bush began to quietly dump parts
of the sixty-one page manual. You can read the details in the next chapter.
However, if the estimate attributed to professor Cassell
was valid, during the thirty years the manual was in full force, it prevented
the solution of something like thirteen million crimes.
It’s
a good thing Earl Warren didn’t have to use the manual during his days as a
district attorney. If he had, he could never have gotten convictions in the
“shipboard murder case.”
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sleep. So he knuckled under and signed.
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CHAPTER
21
THE
ROOT CAUSES OF CRIME:
ACTIVIST
JUDGES
A
June, 1998 Washington Post editorial concerned a proposed Constitutional
Amendment to protect “victims’ rights.” The Post’s editors were against it.
Liberal newspapers oppose any amendment to our Constitution unless it’s one
passed by judges. They prefer that “We the People” keep our grubby mitts off
the Constitution and let judges “evolve” it when it needs amending.1
In
any case, the question naturally arises: Why should we need an amendment to
protect victims’ rights? Judges have told us that our Constitution protects
topless bars, illegal immigrants, abortion parlors, and homosexuals. It also
protects murderers, rapists, thieves, and drug peddlers. How come our founders
cared more about criminal predators than their victims?
The
question answers itself. Our founders placed no such preference in the
Constitution. Rogue judges put it in the bogus constitution. Led by the Second
Great Prince of Usurpation, the Supreme Court spawned herds of sinister mutants
which devoured victims’ rights. After the Second Great Prince left the scene,
the
The
people were not too happy about everyone but victims having rights. So Congress
was considering an Amendment to undo some of that evolution. Maybe by the time
you read this, you’ll know how the proposed Amendment made out. Meanwhile,
let’s make a rough estimate of how many victims the Supreme Court created.
CRUEL AND UNUSUAL CRIME RATES
Around
1960, the
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remained sky high during his time in office and
beyond.
Ronald
Reagan did a little better. By the late 1980's, Reagan had appointed enough
Supreme Court justices to move the Court in a different direction. It quietly
trimmed back on some criminal friendly rules that the Warren and Burger Courts
had written into the bogus constitution. It didn't do anything too obvious.
Supreme Court justices put defending the Court’s image ahead of any competing
value. So the Reagan appointees just trimmed back as slowly and quietly as they
could. At this writing, Reagan and Bush appointees still constitute a majority
on the Supreme Court. So it’s holding the line on the rights of criminals. Now
let's look at the results of all this judicial inventing, revising, and trimming.
The
Crime rates only went up a little bit more
during the 1970's and 1980's. Some years they rose. Some years they even fell a
little, only to resume rising the next year. The rates for some crimes, such as
murder, stayed roughly constant between 1970 and the mid 1990's.2
In
the late 1990's, crime rates steadily declined. The trimming back by Reagan's
judges had started to show its effects. However, crime rates were still a lot
higher than they were before the
In
a nation of 270 million, fourteen million crimes are about one for every
nineteen people. In 1994, you had about one chance in nineteen of being a
victim. That's about 5.2 times as high as your risk of being a victim was back
in 1960. Your risk went up five-fold after rogue judges revised the bogus
constitution to protect crooks.
Actually,
your chances of being a victim in 1994 were a lot higher than one in nineteen.
The fourteen million number counts only those serious crimes reported to the
police. Most crime victims are street wise. They know that only a small
percentage of the serious crimes reported result in arrest and conviction.3
So they don't bother filing a police report. They
figure it’s not worth the trouble. Consequently, the FBI’s published crime
rates don’t include all the crimes.
The
Justice Department publishes crime data which also include estimates for the
crimes that victims do not report. Every year it hires a polling firm to go out
and ask people if they were victims. Based on the answers, the polling firm
then uses statistics to work up an estimate. The Justice Department data say
that, in 1994, we had a lot more than fourteen million crimes. We had
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about forty-two million. That works out to about one
chance in six and a half that you’d be a victim. You had the judges to thank
for that.
Now
I admit it’s unlikely that defective court rulings were the sole cause of the
extra crimes. Other factors were at work to influence the crime rates. Social
scientists mention fatherless homes, drugs, failed public schools and TV
violence. They also mention demographics. In the years in question, we had a
big growth in the number of males between the ages of sixteen and twenty-four.
Young males commit most of the crimes. So the baby boom helped cause the rise
in crime rates.
The
social scientists have a point. It's not fair to blame the judges for all the
increase in crime rates. You surely can’t blame them for the baby boom. So it’s
clear that they don’t deserve 100 percent of the blame. However, the judges
certainly deserve part of the blame. Sometimes they even admit it. Richard
Posner, a federal appeals court judge, admitted it in a book that he wrote.
Posner admitted that the judges were partly to blame for the increase in crime
rates. But he didn't offer any estimates of how big a share of the blame they
deserved. So I'll take a stab at it.4
Renegade
federal judges not only made it a lot harder to lock up criminals, they also
helped along many other causes of crime. They ruined our urban public school
systems. Failed public schools lead directly to an increase in the criminal
population. They also protected porn which probably inspires crime. Sexually
explicit porn promotes rape and child abuse. You can review the evidence for
this claim in the book Only Words by Catherine MacKinnon.5
Violent
porn can lead troubled school children to murder their classmates and teachers.
An April 22, 1999 Article in USA Today reviews the basis of this claim.6
Taking
all those things into account, it seems fair to blame judges for at least
one-half the increase in crime rates. Let's see what that implies about the
total number of crimes caused by judges. One can find detailed annual
crime-rate data in any almanac. The ones I used are described in the Notes and
Citations section and in the Bibliography.2
We'll
use the FBI numbers which only include reported crimes. And we'll only look at
the twenty years from 1970 to 1990. That way we'll be going easy on the judges.
Between 1970 and 1990 the murder rate was about twice as high as it was in
1960. But rogue judges only get blamed for one-half the increase, or
one-quarter of the murders between 1970 and 1990. That's about 100,000 murders.
Rogue
judges also get credit for one-half of the growth in the rape business between
1970 and 1990. That adds up to about one-half million rapes. Using the same
logic, renegade judges' total credit for all crimes between 1970 and 1990,
violent and non-violent, would be about ninety million crimes.
In
his opinion in Miranda v. Arizona, Earl Warren gave a pious little
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lecture to the cops. He said that they must be fair to
the crooks. Otherwise, the cops "can become as great a menace to society
as any criminal we have." Earl didn't say anything about the menace posed
by buccaneer judges who distort the Constitution to help crooks and hinder
cops. He didn’t say anything about fraudulent court rulings that bless us with
100,000 murders, one-half million rapes and ninety million other crimes.7
Perhaps
you don't agree that judges deserve credit for (only) 50 per cent of the growth
in crime rates. You think 10 per cent (or perhaps 90 percent) is a little more fair. Fine. You can multiply
each of the above three crime totals by 0.2 (or 1.8) and get the right ballpark
estimate for your preferred blame factor. The 10 per cent blame factor gives
the judges credit for only 20,000 murders, 100,000 rapes and eighteen million
other crimes. (The 90 percent blame factor will get you 180,000 murders,
900,000 rapes, and 160 million other crimes.)
The
exact numbers don’t matter very much, do they? Any way you slice it, renegade judges are to blame for an awful lot of crime.
Keep in mind that all those numbers only take account of the crimes that
victims reported to the police. They also only take account of the period up to
1990. Those numbers are on the low side.
IT’S ALL CONJECTURE
No
doubt most social scientists will say that I haven’t proved a thing. Fifty per
cent, 10 per cent, it's all conjecture. I need a more convincing analysis of
causal mechanisms to support blaming the judges for all those crimes. OK. Let's
talk about some causal mechanisms.
During
the 1960's, the cops' rate of success at solving serious crimes declined by 34 percent.8 As a result, roughly one-third of
the criminals who would have been locked up under the old rules, went free
under the new rules. More criminals on the loose means
more crime. That is a no brainer.
Social
scientists, from time to time, go into jails to interview the inmates. They
want to learn everything about criminals. One group of social scientists wanted
to find out how many crimes the inmates commit when they are on the loose. So
they asked them. A fellow named Steven Levitt
published a study, in 1995, that reported what the
social scientists found out. The average criminal they talked to claimed credit
for 141 non-drug-related crimes per year. The number went way up to 1834 crimes
per year if they included drug crimes. The social scientists didn't believe
those numbers. They thought that some of the inmates exaggerated because their
professional pride was on the line.
The
social scientists wanted to get more reliable numbers. So they went out and got
all the hard evidence they could to supplement the interview responses. Then
they used some high powered math to massage all the
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numbers. They concluded that the average criminal,
when on the loose, commits about fifteen non-drug-related crimes per year, not
141 as claimed.9 Most of these fifteen were property crimes like
burglary, car theft, or larceny. Two or three were violent crimes like robbery,
rape, and assault. You will be relieved to learn that the average criminal,
when at large, only committed 0.004 murders per year and 0.05 rapes per year.
Those numbers simply mean that only a small percentage of criminals were into
murder or rape.9
Anyhow,
whatever the exact numbers, the point is clear. Each criminal on the street,
because of the
We
also have other convincing proof that putting more crooks in jail lowers the
crime rate. Crime rates finally started falling in the 1990's. Reagan and Bush
appointees on the Supreme Court, and federal appeals courts, had been quietly trimming
back the
You
can also read about it in your daily newspaper. In early 1999, the Washington
Post, New York Times, and USA Today all deplored a recent ruling by a federal
appeals court in Virginia (the 4th circuit).11 The court
had ruled that the cops could quit using part of the Warren Court’s sixty-one
page manual of Miranda procedures. After almost forty years, the judges
declared that the manual wasn’t really in the Constitution after all. They said
the
The
states had also built a lot of new prisons in the 1980's and 1990's. So they
had room for a lot more convicts. The number of crooks in jail, therefore,
climbed steadily during the 1990's. Crime rates fell as the number of crooks in
prison increased. Liberals said that was a dirty shame. Since crime rates were
falling, prison populations should be falling too.13 The liberals never mentioned the obvious. Crime rates were
falling because prison populations were rising.
According to a fellow named Charles Murray, writing in
the Wall Street Journal, the number of crooks in jail increased by about 1.5
million during the 1980's and 1990's.14 A page or two back we
learned that, on average, each criminal on the loose commits 0.004 murders,
0.05 rapes, and 15 miscellaneous other crimes per year.
Let’s
do a simple math problem to see how many crimes were avoided because the extra
crooks were in jail. My calculator says that an extra 1.5 million crooks in jail
means 6000 fewer murders, 75,000 fewer rapes, and 22,500,000 fewer crimes of
all types each year. The increase in the jail population alone can explain all the drop in crime rates in the late 1990's.
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That,
it seems to me, removes any lingering doubt that renegade judges caused the
crime wave of the 1970's and 1980's.
LITTLE ALBERT NEEDS BRACES
Maybe
someone out there still has lingering doubts. If so, there’s another causal
mechanism to consider. If you demoralize the cops and inspire the crooks, the
crooks will become more successful at their work and the cops will become less
successful at theirs. The impact of
Look
at it from the policeman’s point of view. You work sixty-hour weeks to solve a
rash of local murders. You finally learn who the killer is. It’s some thug who
has been working as an enforcer for the local drug lords. You gather a lot of
evidence. Then you risk your life to arrest him. You can prove beyond doubt
that this guy left three or four bullet-riddled bodies lying around town. One
of those bodies could easily have been yours. You were lucky this time.
The
thug's lawyer comes up with a story. He says that most of the evidence was
"tainted." You found it in the thug’s apartment. You had a warrant
signed by a judge. She had signed it on the basis of a statement from a stool
pigeon. The lawyer claims that the judge who signed the warrant made a mistake.
The stool pigeon was not reliable. You should have gotten a sworn statement
from a higher class member of society. The lawyer also cites an appeals court
precedent that seems to apply. The judge agrees, and the killer goes free.
The
thug gets in his new Cadillac and goes out to have some laughs with the boys.
The defense lawyer gets in his Corvette and drives to a local singles bar. The
appeals court judges drive off to the athletic club in their BMW’s. You get in
your beat up nine-year-old Ford and go home. Your wife tells you that little
Albert needs braces. It will cost eighteen hundred dollars and you only have a
hundred and sixty-four bucks in the checking account.
Last year your income was one-third that of the defense lawyer,
one-fifth that of the appeals court judges and one-twenty-seventh that of the
thug. You now have to worry that he might look you up and kill you.
Every year in
Maybe,
at this point, you would start to question the value of your work. Maybe you
would start spending more time in donut shops. You might even think about
becoming corrupt. Judges are at the top of the social pecking order within your
industry. Their purpose in life seems to be to prevent you from protecting
society. They are very well respected for this dubious service. You,
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the cop, start to wonder. What is the meaning of the
word corrupt, anyway?
That
is the result of destroying the cops’ morale.
Most
of the social science professors will not buy any of this. In fact, they will
be offended. This story line does not fit their picture of reality. They think
that blaming the priesthood of judges for crime is heresy, it is sacrilege, it is a mortal sin.
They
are all in denial.
The
professor of law has a different take on the problem. She says that even if
judicial rulings did cause all that crime, it doesn't matter. The judges have a
sacred duty to uphold the Constitution.
What
she says is true. She has a very good line. However, let's be clear about which
Constitution the judges have a duty to uphold. They swore to uphold the real
Constitution, the one that begins “We the People.” Instead, the constitution
they uphold is the one they made up themselves. They gave us 100,000 murders, a
half-million rapes, and 90 million various other crimes to uphold it. So I
guess we have a right to blame them for the murders and rapes.
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CHAPTER
23
CRUEL
AND UNUSUAL PRISONS
You
probably learned in school that
The
So federal judges started ordering the states to turn loose enough
criminals to get their numbers down. That turned out to be a lot of
criminals. Cruel and unusual prisons were found in forty-seven states and the
Now
think back to all your summer vacations. Did you ever visit a 150 or
200-year-old jail? It had cells about as big as apartment bathrooms. The
jailers shoved inmates’ meals under the door. If the sheriff needed to put
several people in a cell, that's what he did. He used leg irons to protect them
from each other and to keep the more resourceful ones from breaking out.
Keeping the bad guys locked up was the main goal. Our forefathers, who built
those old jails, also wrote the Eighth and Fourteenth Amendments. Do you think
they would agree that most state prisons, in the 1960's, were cruel and
unusual? Do you think that, in the 1960's, “We the People” agreed with those
rulings?
Federal
judges said that forty-seven states had "unusual" prison conditions.
That leaves three states whose prisons were usual. You’ll have a hard time
finding a more obvious fraud than that. Look up unusual in the dictionary.
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TWO JARS OF CHUNKY
Federal
courts began overseeing our prison systems in the late 1960's. Let's see if
they achieved the ideal of a prison system which is kind and usual. According
to Fortune Magazine, tax dollars paid for the following inmate complaints.2
■ A convict in
■ A
convicted rapist sued the State of
■ A fellow in a
According
to the Wall Street Journal, a
It's
clear that our prisons still had some problems with cruel and unusual
punishments. However, you can see by the following cases that our federal
courts were still standing guard.
■ A special prison for convicted sexual predators, in
■ An inmate in
■ Even
death row is no longer cruel and unusual. In the state prison in
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and changing places with them.6
Prisoners
have a “constitutional” right to make a lot of phone calls. You can run a
boiler room racket from a state prison. You just keep calling people until you
get someone gullible enough to accept the charges. Then you try to sweet talk
him (or her) into sending money. It only takes a 2 or 3 per cent hit rate to
have a good business. Sometimes you can even get some lonely soul to come to
the prison and marry you.
In
1997, I got a call from the telephone company. The operator (really a phone
company computer) said that it was a collect call from "Rashid" who
was in "a correctional facility." She (it) asked if I would accept
the charges. I just hung up. I didn't know any Rashid. I didn't want to talk to
him. I didn't want to pay for the phone call. I didn't want to send him any
money. I sure as hell didn't want to go to the prison and marry him.
About
two weeks later Rashid tried again. It was a little unnerving. How did he get
my name? Why did he try me twice? Did he merely keep sloppy records, or did he
have some special interest in me? Has Rashid called you?
I
sure hope he wasn't calling from an
In
1996, a prison counselor was murdered at the Lima Correctional Institution, a
prison in
POWERFUL INMATES
By
1999, it seemed that our state prisons were no longer "cruel and
unusual." Inmates could practice their normal business while in the can.
So the federal courts could relax. But then several news stories indicated
things weren’t quite so rosy. A
A
federal judge in
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raped, beaten, owned, and sold by more powerful
ones." One can’t help but wonder about the following two questions:10
■ How could the State of
■ Were
“more vulnerable” inmates being “raped, beaten, owned, and sold” by “more
powerful” ones, before federal judges took over
A
few days earlier, the same paper had run a piece concerning a “notorious gang
bred in prison.” Some of its members were being tried for five murders. A
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BOOK
V
LIFE
AND DEATH
IN
THE PRINCIPALITY OF JUDGES
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CHAPTER
24
CRUEL,
BUT NOT UNUSUAL,
JUDICIAL
BUNGLING
Do
you remember the second great commandment of Acluism?
It demands that we punish the innocent and reward the guilty. Therefore, Acluists have long opposed the death penalty for criminals.
Of course many people oppose the death penalty for criminals. They may have
moral or religious reasons. Or they may oppose it because they know that courts
make a lot of mistakes. Therefore, they don’t trust them with anything as final
as a life or death decision.
Courts
do not impose the death penalty in a fair and consistent way. There can be no
doubt about that.
Court
blunders in this area are numerous and well-documented. During the twenty-five
years ending in late 1998, seventy-four men were freed from death row because
someone came up with proof they were innocent. During that same time frame
about five-hundred people were executed. That’s roughly seven executions for
every death sentence proven to be in error.2 You’ve
got to wonder. How many more blunders by courts were erased by those
five-hundred executions? Never mind the blunders hidden in the half-million, or
so, murders that did not result in a death sentence.3
Court
decisions turn on lawyers’ skills and financial resources, not on truth or
justice. If a killer is rich enough to hire a team of top defense lawyers, he
probably won’t even get convicted much less sentenced to death. However, guilty
or innocent, if you’re dirt poor and unattractive you’re a prime candidate for
death row. Your court appointed lawyer is likely to be mediocre at best.
Critics
say that we should, therefore, outlaw the death penalty. Having unjust courts
is bad enough. Allowing them to kill people is far worse. So let’s not allow
them to kill anybody. So far most voters have refused to go along with that.
I
suppose that, sooner or later, the voters will go along and end the death
penalty. Voters in most other Western countries have long since done so. If
you’re only executing one killer out of every thousand, it’s hard to argue
you’re having any effect on the murder rate.
In
my opinion, it’s a good bet we would have gotten rid of capital punishment long
ago. But our judicial branch of government got in the way. Back in the 1960's,
it seized control of the issue. Its mistakes made a lot of
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people angry and kept democracy from dealing with the
matter in a rational way. You can’t understand our secular papacy without studying
its arrogant usurpations in this area. So let’s review the history of those
usurpations.
In
the three decades between 1930 and 1960, states executed, on average, about 100
killers each year. The number of murders each year was about 100 times as
large. So we were executing about 1 percent of the murderers. Capital
punishment was already on the way out.
Then,
in the 1960's, our liberal nobility decided the people would no longer have a
say in the matter. It adopted the position that the death penalty was a
"cruel and unusual" punishment under the Eighth Amendment. At first
that was a hard sell. Legal scholars all knew that the death penalty was quite
common throughout our history. The Fifth and Fourteenth Amendments even laid down
rules for its use, the same rules that applied to depriving one of “liberty”
and “property.”
So
judges knew it would be nonsense to claim that the authors of the Eighth
Amendment intended to empower future courts to ban capital punishment. Prior to
the 1960's, therefore, the Supreme Court declined to try. However, a
Some
time after the 1958 ruling, liberal lobbying groups decided that this judicial
stink bomb created an opening to amend the Constitution to ban the death
penalty. However, they needed to set the stage with a clever, long-term
campaign. I’m not going to name the lobbying groups. I don’t think that adds
anything to the story. I’ll just call them the judicial usurpation industry or
“the industry.”
The
scheme that the industry came up with was a beauty.5 Let's call it the habeas corpus scam. Habeas Corpus is Latin
for “have the body.” Western law has long empowered judges to issue “habeas
corpus” orders for the protection of prisoners deemed to be held unjustly.
The
scam went something like this: The industry’s lawyers went around the country
filing suits against death penalty sentences. They would make up some legal
pretext as to why each one was unjust. Then they would go to a federal judge
and ask him to put the sentence on hold until this problem was cleared up.
It
didn't matter what the pretext was. If one didn't work, they would try another.
Many judges were in support of their goals. Besides, even a fair and honest
judge would have a hard time saying no. This sincere, clean-cut looking lawyer
in front of you thinks the convicted killer is innocent. His story has a lot of
impressive legal buzz words. You don't want to execute someone if any doubt
arises about his guilt. You can always go ahead and do it after they
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resolve the doubt.
If
the first judge didn’t buy the pretext, the industry lawyers could try another.
If the industry lost when a case came to trial, it would appeal to the next
higher court. After three or four years the courts would make a more or less
final decision on each pretext. Sometimes an appeals court would rule in favor
of the industry’s claim. Unless the Supreme Court agreed to hear an appeal of
that ruling, the lucky fellow involved was then moved off death row. At other
times, the appeals court would rule against the claim. So the state that
sentenced this fellow could now execute him, right?
Not
quite. The judicial usurpation industry would just think up another bogus issue
and start over. This set the stage for another three or four-year delay. In
this manner the industry could string together ten or fifteen years worth of delays in each execution. Death sentences
that were carried out became as rare as hen's teeth. In the entire decade of
the 1970's, the
By
1972, about 600 criminals were waiting around on death rows all over the
country. The industry then went to the Supreme Court with the next phase of its
plan. Its lawyers knew that three or four liberals sat on the Court. They would
relish an opportunity to expand the bogus constitution.
The
Court also had a couple of conservatives who would probably vote to uphold the
real Constitution. That is, they would refuse to find something brand new in it
that “We the People” had never put there. That left a couple of swing votes.
They did not have a strong commitment to the real Constitution. But they were
not willing to insult it without some kind of payoff. The industry had already
planned for that. It knew that the swing voters would refuse to sign 600 death
warrants. Not feeling rotten was the payoff.
The
plan was right on target. In the 1972 Furman v. Georgia decision, the
Supreme Court voted 5-4 that all the existing death penalty laws were cruel and
unusual. The 600 or so death row inmates all got off the hook. The judges
couldn't agree on a reason. They wrote nine separate opinions that ran to about
50,000 words on 243 pages. At the time that was the longest decision in Supreme
Court history.5
THE EVOLVING STANDARDS SCAM
The
five judges in the majority had a hodge-podge of different reasons. Their five
opinions had three main themes. The percent of death row inmates who were black
exceeded the per cent of Blacks in the public at large. So a couple of the
judges thought that the death penalty was a tool of racism.
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The
second main theme was a perceived lack of clear and consistent rules. In recent
years, states had carried out the death penalty so rarely that it was like
winning or losing at the roulette table. Luck seemed to play too big a role in
the process. The judges had to be a little bit cautious with this idea. They
knew that this problem was due partly to the habeas corpus scam. Federal judges
had made the death penalty "unusual." They had also helped make it
random.
The
evolving standards scam was the third main theme. Two judges in the Furman
majority voted to use it to outlaw the death penalty forever. This scam goes
roughly as follows: The Eighth Amendment is not "static." It changes
as time goes on guided by "the evolving standards of decency that mark the
progress of a maturing society."
So
how come the
Fourteen
years later "standards of decency" hadn't really evolved any further.
In fact they had evolved backwards. In 1972, the American people favored
keeping the death penalty more strongly than they had back in 1958.6
However, in 1972 things were a bit more quiet. The judges
thought that they could then get away with a brazen new usurpation.
After
1972, standards continued to evolve backwards. The percent of the public that
wanted to keep the death penalty kept rising. The people were reacting to
rising crime rates and out-of-control judges. Thirty-five states passed new
death penalty laws to get around the problems that the 1972 Furman
ruling claimed existed in all the earlier laws.
The
judges knew that they had to do something. The people and the states were
challenging their power. A lesson from Machiavelli applied here.7
" . . . a prince is contemptible when he is counted
effeminate . . . and irresolute; and of this he ought to be as careful as of a
rock in the sea."
The
Court also had to take action for another reason. It liked some of those new
laws even less than it liked the old ones. The people had taken the judges at
their word. Most of the five who voted to strike down the earlier laws had
objected most strongly to "random and arbitrary." So the states tried
to design laws that nobody could say were random and arbitrary. About half the
new laws made the death penalty mandatory for those convicted of certain
crimes.
This
horrified the justices. They thought their action had ended capital
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punishment for good. They thought that the people and
the states would meekly submit. The people did not meekly submit. They passed
mandatory laws. The number of executions was going to increase, not go to zero.
By
1975, the Supreme Court was ready to bite the bullet and give it another try.
But it knew it had to be wary of another “rock in the sea.” Thirty-five states
were bent on keeping the option of using the death penalty. Thirty-five was
close to the number needed to amend the Constitution. If the people started the
wheels in motion to do that, our judicial branch of government could get a
bloody nose.
The
Court heard appeals of death sentences imposed under
five new state laws. The justices figured that those five covered all the new
approaches. They announced a decision in 1976.8 Again,
only two justices were brazen enough to hold that any death sentence violated
the Eighth Amendment. But three more voted to strike down fifteen of the new
laws because they were not “random and arbitrary.”
Those
fifteen called for mandatory capital punishment for certain crimes, like
killing a policeman. The Court said that standards had evolved to the point
that a "mandatory" death penalty was now "cruel and
unusual." The judges couldn’t think of any other approach. Those fifteen
laws got around all their other objections
The
Court didn't cite any polls. It didn’t say whose standards it was talking
about. It just relied on the fact that only fifteen states had passed mandatory
laws. That was not nearly enough to give it a bloody nose.
The
majority figured it could live with the rest of the new state laws. They all
called for a lot of complex court procedures, taking almost all discretion away
from juries. They also guaranteed that no killer could be executed in less than
a decade or so. They wrote the habeas corpus scam into state law.
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CHAPTER
25
PENUMBRAS
AND EMANATIONS
In
1968, we elected Richard Nixon President of the
Nixon
appointed four members of the
Its
most famous bogus amendment came in 1973. That year it handed down Roe v.
Wade, a piece of fiction that started a culture war. The decision nullified
the abortion laws of forty-nine states, nineteen of which had just relaxed
those laws. Public opinion was becoming more liberal on this issue and the
states were changing their laws to reflect that trend. Democracy was working
exactly the way it's supposed to. The Court jumped in with both feet anyway.
The ruling caused a public uproar with much criticism of the justices as
butchers and baby killers.
Three
out of four Nixon appointees voted for Roe v. Wade. Chief Justice Warren
Burger, who Nixon chose to lead the Court away from its buccaneer ways, voted
for it. Harry Blackmun, Nixon's second choice, wrote
it. Only William Rehnquist and Byron White, a Kennedy appointee, voted no.
White
expressed concern about the Court’s image. The Court was planning to outlaw the
death penalty around the same time it decided Roe v. Wade. White pointed
out that, taken together, those two rulings would send an awful message about
the Supreme Court's values. It would seem to prefer killing the innocent rather
than the guilty.1 Some of the more liberal
members just smiled. The first great commandment of Acluism
demands that the innocent be punished and the guilty rewarded.
Roe
v. Wade was a big success for Acluism. Millions
of Americans now cling to its fictitious right of “privacy” which they believe
is somehow based on the Constitution. The ruling, however, had no basis in the
Constitution, and the
Most
legal scholars expect judges to ‘evolve’ the Constitution. But it has to be
done with a bit of class. They expect a decent cover story. An
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incompetent ‘evolution’ makes the profession look bad.
Even the young law clerks in the Supreme Court could see Blackmun’s
opinion for the clumsy effort that it was. They called the opinion
"Harry's Abortion."3
HARRY’S ABORTION
The
Constitution does not mention abortion. So the Court said that the right to an
abortion follows from a right to privacy. The Constitution doesn’t mention
privacy either. It’s also hard to see how one could view an abortion as a
private act. At a minimum, this act involves a mother, a doctor, and an unborn
baby. Nevertheless, Harry Blackmun and the others had
made up their minds to find a right to abortion in the Constitution. They
needed some kind of a cover story to explain how and when that right got there.
This was quite a challenge.
In
the years before 1800, when
Our
founders, therefore, would have thrown ripe fruit at any politician who wanted
them to protect abortion in the Constitution. Furthermore, our founders
intended the Bill of Rights to apply only to the federal Government. The judges
have never denied that fact. So it's clear that the original Bill of Rights
contained no license for federal judges to meddle in state control of abortion.5
Harry
Blackmun and the others, therefore, fell back on the
old reliable Fourteenth Amendment. Judges have long claimed that the Fourteenth
Amendment gave them an unlimited right to invent radical new content in the
first ten. That approach also had some serious problems.
As
you will recall from Chapter 6, the Fourteenth Amendment was not intended to
confer any new powers on judges. Its authors deliberately wrote it to confer
enforcement power on “Congress.” In 1867 “We the People” would not have trusted
the Supreme Court to take out the garbage. It was held in such low regard that
an influential newspaper called it “a diseased member of the body politic” that
was at risk of “amputation.” A leading framer of the Fourteenth Amendment
threatened “the abolition of the tribunal itself.”
Furthermore,
at that time “We the People” were strongly opposed to abortion. The states
passed a blizzard of anti abortion laws around the same time they ratified the
Amendment. Between 1860 and 1880, the states passed at least forty anti
abortion laws. They passed more than thirty of those laws
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between 1866 and 1877. Congress passed a federal law
restricting abortion in 1873.
Many of those laws passed by overwhelming majorities.
All
that legislation makes the intention of “We the People” very clear. The people,
in 1868, might well have been willing to support a constitutional ban on
abortion if it had come up for discussion. But no honest student of the matter
could believe they would have tolerated amending the Constitution to protect
it.6
So
it’s clear that the Fourteenth Amendment doesn’t protect abortion. No part of
the Constitution that begins “We the People” protects abortion. To Harry Blackmun and his renegade colleagues, that wasn’t a big
problem. They dragged out a precedent which the
Griswold
v. Connecticut had also provoked groans from legal experts. It had claimed
meaning that wasn’t in the bogus constitution either, at least not yet. Outside
legal circles, however, the 1965 opinion didn’t cause much of a fuss. Laws
against the sale of birth control devices didn’t enjoy much public support.7
William
O. Douglas, one of the Court's most creative con men, had written Griswold
v. Connecticut. He wrote that “specific guarantees in the Bill of Rights
have penumbras, formed by emanations from those guarantees that . . . create
zones of privacy.”7 That sounds like something one might hear in a
science fiction movie, doesn’t it?
What
are “penumbras” and “emanations” anyway? What do they have to do with a right
to abortion? What do they have to do with privacy? I wanted to understand what
Bill Douglas, was talking about. So I consulted a few sources. This is a
summary of what I found.
The
word “penumbra” has long been used most commonly in the science of astronomy.
In an eclipse, the conical region of space that is completely dark is called
the “umbra.” A surrounding region of partial shadow is called the “penumbra.”
The penumbra exists because of an effect scientists
call diffraction. A little bit of sunlight bends around corners, so to speak.
The
word emanation also has long been used most commonly in the physical sciences.
Radioactive rays, for example, are said to emanate from a source such as a
chunk of plutonium. Light waves emanate from a lamp and sound waves emanate
from a speaker.8
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The
rationale for Douglas’s and Blackmun’s opinions,
therefore, seems more or less as follows. The secular papacy knows that a right
of “privacy,” which courts might twist to protect abortion, is somewhere in the
Bill of Rights. They know this because it ‘emanates’ a strange light that only
judges can see. Mere mortals can’t see it. But the justices can see it because
they perceive ‘fundamental law.’
The
strange light forms dim, fuzzy shadows. Through some magic, those shadows
become a new amendment to the bogus constitution and create “zones of privacy.”
That seems to be Bill Douglas’s rationale for Griswold v. Connecticut. Therefore, its Harry Blackmun’s rationale
for Roe v. Wade.
The
magic new amendment is not general and vague as you might expect from something
born of strange rays which came out from nowhere and formed shadows. As applied
to Roe v. Wade, it contains special rules that depend on how many weeks
old the fetus is. I was really impressed that the Court could find such
detailed and precise rules in “penumbras" formed by “emanations.”
Imagine
that you were a witness to a traffic accident. The court summoned you to
testify and the lawyers instructed you to describe what you saw. You started
prattling about "penumbras" and "emanations." What do you
think the judge might do?
BEINGS OF AN INFERIOR ORDER
It’s
time to point out another troubling fact about Roe v. Wade. By this
ruling, renegade judges did exactly what our founders wrote the first Amendment
to ban. The ruling was based on an elite minority’s moral values. It was based
on beliefs the Supreme Court had earlier defined as religion.
In
1970, in Welsh v. United States, the Court affirmed it’s
1965 decision (see Chapter 10) that a religion was any "sincere and
meaningful" belief which was as important to the one who held it as
"orthodox belief in God," was to most folks. Surely you agree that
the core beliefs of pro abortion groups meet this definition. Roe v. Wade
nurtured an alien religion and imposed it on all fifty American states.
Most
of the justices must have realized they were imposing an alien religion on the
states. The 1973 Burger court had seven holdovers from the 1970 Court which had
decided Welsh v.
After
the
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It
went on to say that he didn’t even have a right to sue. As a descendant of
African slaves he could never be a citizen. The Court said that Mr. Scott, and
other black people, were "beings of an inferior order, and altogether
unfit to associate with the white race, . . . (and)
they had no rights which the white man was bound to respect."9
Like
the Dred Scott decision, Roe v. Wade was
driven by the justices’ bias. It trashed the Constitution to serve that bias.
It did great damage to national unity. In Roe v. Wade, as in Dred Scott v. Sandford,
the Supreme Court sided with a minority in a dispute with profound moral
importance. In both cases the minority view caused extreme moral offence to
another large minority.10
Most
other western countries relaxed their abortion laws between 1967 and 1985.
Prior to 1973, our states were doing likewise.11 Renegade judges
aborted that process. Now, among all countries in the West, only the
Rogue
judges took a dishonest action which started a religious war. No doubt they
were following the teachings of Machiavelli who had advised his students it was
sometimes wise to stir up enmity so that one could appear great by suppressing
it.13
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CHAPTER
26
A
HIDDEN PAYOFF
Let’s
look a little deeper into the judicial motives for Roe v. Wade. A
primary motive, of course, was lust for power. The Supreme Court hardly ever
passes up a chance to grab some power.
Power
was not the only payoff. Supreme Court justices hand down biased rulings to
have their egos massaged. The Roe v Wade decision was quite popular with
Maybe
it’s not obvious that those strokes were tantamount to a bribe. Let’s explore
that idea with a little story. Once upon a time, there was a judge in a large
American city. His name was
Judge
Dudley had an unhealthy, and secret, interest in a prostitute named Gwendolyn.
A local drug pusher somehow learned about it. In due course the drug pusher was
arrested and summoned to appear in
Now
let’s add a new wrinkle to the story.
Let’s
change the story one more time. This time there was no hooker named Gwendolyn.
However,
Whenever
The
payoff
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Constitution. An offer of a sexual payoff would
frighten them. However, they would love to have their egos massaged. The
lobbyists for Acluism will gladly massage their egos.
All they have to do is “evolve” the Constitution a certain way.
CLEANSING THE SOUL
Maybe
the point made just above was obvious. Judges on the
Laurence
Tribe, a famous law professor, wrote a book defending Roe v. Wade. He
named it, Abortion, The Clash of Absolutes.
Tribe’s book gave some numbers on illegal abortions before 1973. He was trying
to make the point that there was already a lot of abortion going on so Roe
v. Wade was a wise ruling. It made legal what people were doing anyway. I
plan to use his data in a different way.
Professor
Tribe quoted estimates that "as many as one in three" conceptions
between 1900 and 1950 ended in abortion. He said "as many as." That
seems to mean he knew that one-in-three might be on the high side. A
middle-of-the-road estimate would be lower, perhaps only half as large. I plan
to use Tribe's numbers to beat up his friends on the
Abortion
rates did not decrease between 1950 and 1973. More than likely they went up.
Public views on abortion became more liberal during those years. So we can
assume there was at least one abortion for every four live births during the
entire period from 1900 to 1973. Those years include the entire adult life span
of all the old men on the
It’s
not hard to document that
This
leads to a really easy word problem in high school algebra. The answer is, we must have had about one abortion for every two old men.
Keep in mind that most of those abortions were illegal. They were criminal
acts.3 For every nine old men around in
1973, the
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Besides
mothers, all those aborted fetuses had fathers, grandfathers, uncles, and so
forth. They had extended families, some of whose members knew about, or even
helped procure, the abortion. If we’re willing to settle for a rough estimate,
the conclusion is fairly clear. A high percentage of the old men around in
1973, perhaps as many as one-half, had a dirty little secret in their past. A
family member had once had a criminal abortion that they (the old men) knew
about, and maybe even helped procure. In many states, that would have been a
crime. There were a lot of criminals walking around.
Now
let's see if we can gain any insight into who those
criminals were. Women and girls from working class families were more likely,
than upper class women, to bear an unwanted child. So members of the higher
social classes had most of the abortions.3
Most
Supreme Court Justices were well off all their adult lives. The judges on the
Now
put yourself in their place. You are a high priest of the Constitution. You are
a pure and trusted symbol of
Now
along comes Roe v. Wade. You know that the Constitution says nothing
about abortion. Like a lot of other things it's in an area that the founders
left to the states. But the lawyer arguing the case for abortion has a cover
story that might fool a lot of people. Some of the other justices seem to be
buying the cover story. So what do you do?
If
you violate your oath to uphold the Constitution, it will be only the twelfth
time this year. No big deal. Besides, the only constitution that matters is the
bogus one, and that’s anything that you and your colleagues say it is. If you
and at least four colleagues vote for the cover story, you’ll feel a little bit
cleaner.
Seven
members of the
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CHAPTER
27
THE
INTEGRITY OF THE COURT
Imagine,
for a moment, that you have a sister named Gwendolyn. Gwen has lousy taste in
men. Lately she’s been hanging around with a reputed dope dealer named
You’ve
learned that Gwendolyn lied to the police to give
Supreme
Court justices often confront a similar choice. When that happens, they usually
choose to obstruct justice. When following stare decisis
requires them to violate their oath to uphold the real Constitution, they
usually violate it and uphold the bogus one instead. That’s an unlawful act. However,
as a practical matter, they’re not likely to be punished for it. No one is in a
position to keep them honest.
Through
the 1990's, the Supreme Court had a conservative majority. Its members knew
that Roe. v. Wade was a defective ruling. But they failed to reverse it.
They thought they needed to sustain it to protect the Court’s image. And they
were afraid to provoke the fierce ire of the abortion movement. In 1992, the
Supreme Court decided Planned Parenthood v. Casey.1 This
case, which involved various state rules concerning abortion clinics, was a
perfect opportunity to dump the Roe v. Wade precedent.
Seven
of the nine justices reportedly thought it was based on fiction. Yet three of
those seven voted not to reverse it. Following lessons in The Prince,
three “centrists” wrote an opinion preserving Roe, but revising it to
offer less offence to then current public views on abortion. That took some
pressure off, and it maintained the Court’s credibility. Their opinion stated
in part, "A decision to overrule Roe's essential holding . . . would . . .
cost . . . profound damage to the Court's legitimacy.”1
Let's
translate that. If a majority of justices violate their oaths to uphold the
Constitution, other justices in later years must violate theirs too. Otherwise,
the Supreme Court’s "legitimacy" will suffer. That’s a damn strange
definition of "legitimacy."
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LIFE,
On
March 6, 1996, the Ninth U. S. Court of Appeals struck down
The
U. S. Supreme Court, in June 1997, said that the Second and Ninth Circuits were
wrong. Whatever they saw in the Constitution was not in the version that the
Supreme Court uses. The vote was nine to zero.3
At
first the decision amazed me. I knew that most
The
Roe v. Wade precedent says that the Fourteenth Amendment protects the
right of doctors to kill millions of human beings in order to safeguard a right
to “privacy.” The victims are invariably at the threshold of the human
adventure. They have their entire lives before them. Furthermore, the doctors
who “abort” them don’t even have to get their permission, just the permission
of their mothers.
How
could such a sweeping right to “privacy” not also protect a doctor who ‘aborts’
a consenting victim whose life is almost over anyway? An honest and competent
logical analysis could arrive at no other result.
After
a while, I figured out why my initial assessment was wrong. The Supreme Court’s
analysis in the assisted suicide cases was quite impressive. It didn’t rely on
the bogus constitution. It didn’t rely on the real one either. If it followed
the real Constitution, it would have had to dump Roe v. Wade. The Court
relied on the advice of Machiavelli who had warned, “Whoever is the cause of
another’s advancement is the cause of his own diminution.”4
The
secular papacy had ignored this advice in 1973. By means of the Roe decision,
it had created Abortionism, a dynamic and powerful
new religion. Let me remind you of the Court’s definition of religion. In 1965,
in United States v. Seeger, the Court had said
that a religion was any "sincere and meaningful" belief which was as
important to the one who held it as "orthodox belief in God," was to
normal folks.5 Do you not agree that Abortionism (the “choice” movement) meets this definition
of a religion?
Abortionism is actually a throwback to pre-Christian
religions that practiced human sacrifice to placate pagan gods. Its priests and
priestesses, celebrating their sacred ritual of death, claim about
a-million-and-a-half
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victims each year.
By
the 1990's, Abortionism, which began as a minor
branch of Acluism, had become powerful enough to
intimidate the secular papacy itself. The justices feared that its priests and
priestesses would sacrifice them too if they got in its way. So they didn’t
dare mess around with the Roe v. Wade precedent.
However,
they didn’t want to repeat their 1973 mistake. Having the hosts of one powerful
religion of death arrayed against them was quite enough. They weren’t about to
create another. This time they took careful note of the advice of Machiavelli
who had also taught, “dangers that are seen afar off are easily prevented, but
(if one delays) til they are at hand, the remedies
grow unseasonable and the malady incurable.”4
The
secular papacy had already created one “incurable” malady. It was determined to
avoid creating another.
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BOOK
VI
DEMOCRACY
ON LIFE SUPPORT
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CHAPTER
28
POLITICALLY
CORRECT WAYS
TO
BRIBE JUDGES
According
to a September, 1998 article in the New York Times, about 1.2 billion dollars
(that’s billion) was spent lobbying the federal government in 1997. The
number was expected to be higher in 1998.1 The
$1.2 billion only counts money spent lobbying congressmen, presidents, and
bureaucrats. The New York Times would not like to admit that lobbyists also
target judges.
Dictionaries
define the verb “to lobby” in terms of trying to influence public officials,
especially, legislative officials.2 They
single out legislative officials because of the word’s history. The first
lobbyists were folks that hung around the lobby next to the chambers in which
members of the British Parliament met.
When
we use the term lobbyist, we often have in mind someone who influences
officials in a corrupt way. Of course all lobbying is not corrupt. Lobbying can
be a legitimate part of our government process. It provides a path by which we
communicate with our elected officials. There’s a lot of communicating going
on. Slightly under 15,000 lobbyists admitted
delivering messages to our employees in the national government with the $1.2
billion.3
In
this chapter, I’ll define the term “lobbyist” as a person who works for a
special interest group. His job is to influence public officials to take an
action that the special interest group wants taken. Often the desired action
will damage the interests of the public at large. The special interest group is
trying to obtain some benefit at our expense.
Lobbyists
usually offer some kind of payoff. Sometimes they offer a
cash payment, either for the official’s reelection campaign or for his
personal use. A campaign contribution is legal unless someone proves a
"quid pro quo."
The
words "quid pro quo" are Latin. A rough
translation is “something for something else.” Proving a “quid pro quo” is
almost impossible. Both parties in the deal would have to be incredibly stupid.
For example they would have to do something like having a written contract.
Then somebody sends a copy of the signed agreement to the newspapers.
Anyhow,
whether or not the lobbying is corrupt, it's obvious that the targets of
lobbyists include Presidents, Congressmen and bureaucrats. So what about judges
as targets for lobbyists? Judges don't have any goodies to hand out. They just
decide "cases" and "controversies" according to the law and
the Constitution.
In
a pig's eye!
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Judges
have been handing out public goodies since the dawn of the Republic. And higher-ranking
judges rarely decide a case without bending the result to suit their own
biases. Lobbyists, therefore, could not afford to neglect judges. And they
don't.
Lobbying
federal judges requires a different approach than lobbying Members of Congress.
Federal judges don't need campaign funds. Also, they are well paid. Associate
Justices of the U. S. Supreme Court received $164,100 per year in 1995. The
Chief Justice received $171,500. The numbers are no doubt higher now.4
Federal judges also receive really great fringe benefits. Supreme Court
justices can retire on a pension equal to their full salary. Therefore, you
almost never hear of a Supreme Court justice taking a cash payoff. Lower
ranking federal judges are very well paid too. So I assume that they also
rarely take cash bribes.5
So
how do lobbyists influence a federal judge? How do they influence a justice of
the U. S. Supreme Court? They offer something that motivates him. Yet it’s
invisible to the people. Folks in the business of lobbying judges understand Maslow's hierarchy of needs.
Industry
has long used the theories of Abraham Maslow, a
famous psychologist, to guide human resource policies and make employees more
productive. Maslow’s ideas are not the last word in the
field, but experts still view them as valid and useful.6
Maslow pointed out that one can group all human needs into
five types. He identified, as the five types, survival needs, security needs,
social needs, ego needs, and "self-actualization" needs. Except,
perhaps, for self-actualization needs, the meaning of each type is obvious from
its name. Let's just say that self-actualization needs are needs that are still
left when the other four types are satisfied. It’s not clear that they’re
relevant to our discussion.
So
far, this is just a classification scheme. However, Maslow
also offered some new insights. They began with the idea that the five types
have a natural ranking. He ranked them in order of urgency. The most urgent
needs are the survival needs (food, water, shelter, etc.). Security needs are
next. We hope to survive tomorrow, not just today. Then come
social needs, then ego needs, then self actualization needs.
Maslow’s theories are sometimes taught through use of a
triangle (See Figure 2 on the facing page). The most urgent needs, the survival
needs, are in the bottom section of the triangle. The higher needs rest, so to
speak, on the lower needs. As we go up the triangle, the needs not only become
less urgent; they also become higher status. Being concerned about survival
needs is not cool. That's for residents of the third world. Security needs are
not real cool either. Concern for security needs is, at best, middle class.
Perhaps
all this is obvious. If I am very hungry and you offer me a hamburger to go
into the next room and get your coat I may very well be
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interested. If I am starving, I would be willing to go
to the next county. However, if I have just eaten my fill, I might smile and
suggest that you get your own coat.
But
then you might get me with security. If you offer me an annuity, that is big
enough to keep me in fat city the rest of my life, in return for getting your
coat and polishing your shoes every morning, maybe we could talk.
The
material needs of high ranking judges are usually well satisfied. So, unless
they have some sort of mental disorder, your offer to slip them a few thousand
bucks will not motivate them. They would just give you a dirty look and,
possibly, report you to the Justice Department. You need to think of something
else. You have to move up Maslow's hierarchy of
needs.
You
could offer to fill their belonging needs by wrapping them in the warm embrace
of “the nobility.” Or you could offer them a chance to enlarge the scope of
their power. Power is an ego need.
A
really good way to fill the ego needs of Supreme Court justices is to make them
feel like the kings, emperors, and prophets whose pictures are up there on the
judicial wall. Make them feel that they have the “courage” to pioneer bold new
principles in the Constitution. Make them feel that they alone have a pipeline
to God. Better yet, make them feel like they are God. They alone discern the
sacred mysteries of the "fundamental law.”
These
are the ways lobbyists influence judges to write their pet projects into the
bogus constitution.
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CHAPTER
29
THE
NEW FEDERALISTS
In
earlier chapters, we discussed some important lessons that John Marshall, the
first Great Prince, taught the judges who came after him.
In
every age, judges know which groups comprise the nobility. They usually have
roots in those groups. The nobility is rarely unified. Just as Italian noble
families, in Machiavelli’s time, made endless war among themselves, American
political elites have usually been split into various factions.
Throughout
our history, the
For
Now,
I don’t mean to say that the Court behaved as our founders had hoped. They had
expected its members to decide each case in an impartial way according to “the
intention of the instrument” (John Marshall’s words). They had expected the
Court to avoid intruding on legislative and executive functions. The Court
failed to meet either of those expectations. But, for the first
century-and-a-half, it did tend to defend and promote ‘conservative’
principles.
In
the 1930's,
From
that time on, the Court has usually allied itself with liberal factions.
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It didn’t quit bringing partisan bias to its work. And it didn’t quit stealing
legislative powers. It just went to bed with a new group of nobles.
By
1950, the depression had ended and
WHAT ARE FRIENDS FOR?
By
the early 1950's, we had started to make visible progress against racism. Harry
Truman had integrated our Armed Forces. Jackie Robinson had won the hearts of
millions of white baseball fans. But the buccaneers on the Supreme Court felt
left out. The Court was standing on the sidelines. A civil rights lobbying
coalition then offered them a big piece of the action. We discussed the school
integration cases in Chapter 15.
The
coalition offered a very nice payoff to the justices. It could arrange
editorials in The New York Times praising their vision, wisdom and courage. It
could make them feel like they were among those awesome characters up on the
courtroom wall.
It
offered them a chance to get involved in a holy cause with the nobility of that
era. Liberals were in vogue. They had political clout and social cachet. If the
justices played ball, they could earn the gratitude and approval of those
beautiful folks. They could enjoy payoffs on two different levels of Maslow's hierarchy; social needs and ego needs.
It
was easy to forget that the Constitution did not really allow the result sought
by the coalition. It was easy to forget that they were usurping power that
rightly belonged to the people. Beautiful folks were slapping them on the back
and telling them that the Constitution was whatever they said it was. So they
proclaimed a fiction about the meaning of the Constitution. That was their side
of the deal. Nobody even suspected a quid pro quo. It was too subtle.
While they savored the payoff,
the justices realized that they needed to move further away from this business of
deciding "cases" and "controversies." Compared to the
thrill of being seduced by liberal lobbyists, deciding "cases" and
"controversies" was empty and boring. Deciding "cases" and
"controversies" left them feeling like clerks, librarians, or
bureaucrats in the Social Security office. Every day they came to work they had
to look at a bunch of kings and emperors up there on the wall. Feeling like a
king or an emperor was where it was at. That was what it took to make life
worthwhile.
So
courts, as well as liberals in Congress, started revising the rules to
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encourage more judicial lobbying. They changed the
rules of "civil procedure" to make it easier to file and win ‘class
action’ cases. Pretty soon well funded, liberal, judicial lobbying groups were
coming out of the woodwork.1
AMICUS CURIAE
In
the 1960's and 1970's, liberal lobbying groups sprouted like crabgrass.
Liberals became our leading elites. They controlled most parts of the federal
government. They were filled with a powerful desire to oppress the rest of us.
It was for our own good, of course. After the
Between
1962 and 1972, the number of law students doubled. Many of them were draft
dodgers trying to keep out of the
Vast
throngs of liberals joined forces to lobby the courts, as well as other parts
of the government. Dozens, scores, perhaps even hundreds of liberal public
advocacy law centers sprang up. Like other lobbying groups, the public advocacy
law centers had to be close to the government agencies that they were created
to influence.
The
sponsors of judicial lobbying groups got a very good return on their
investment. Their efforts changed things a lot faster and cheaper than lobbying
Congress ever had. Supreme Court judges were the main targets and there were
only nine of them. You didn't even have to influence them with money. You could
do it by fulfilling their social needs. You could do it with ego satisfaction.
Supreme
Court justices were surprisingly easy to win over. The idea of merely deciding
"cases" and "controversies" left them cold. Wheeling and
dealing with liberal lobbyists in class action cases filled their lives with
meaning. In the 1960's and 1970's, the courts were the main engines of social
engineering in
Most
liberals were nominal Democrats. They were in a party that claimed Thomas
Jefferson as its founder. But they hated democracy. They were enemies of
Ronald
Reagan got elected in 1980 and tried to put the brakes on. He tried to appoint
federal judges loyal to the Constitution. So the pace of social
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engineering by federal courts dropped off a bit.
However, by this time lobbying judges had become a permanent part of the
Some
members of the industry operate on a small scale. They submit amicus curiae
briefs to the federal courts in cases in which they have an interest. Amicus curiae is Latin. It means “friend of the court.” Amicus
curiae briefs long ago started out as helpful legal advice offered to courts by
disinterested parties. In the 1960's, they became tools for large scale
lobbying.
The
judges came to rely on the briefs to tell them where all of the lobbying groups
stood on the issues at hand. If you are running a legislative body, you need to
know where all the major players stand.
Other
judicial lobbying groups went far beyond the use of amicus briefs. Their only
business was amending the Constitution without our approval. They would recruit
plaintiffs and finance a complex series of court cases on several levels. They
supplied much of the legal brainpower needed to think up clever new frauds for
the judges to use.
When
these groups won in court, the judges awarded them fat legal fees, usually paid
by the taxpayer. Judicial lobbying can be a very profitable business, or at
least a self financing approach to lobbying. You don't have to pay the folks
you lobby. They pay you. They pay you with somebody else's money, of course.3
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CHAPTER
30
LET’S
NOT CALL IT USURPATION
Did
you ever hear of an industry that didn’t try to manage the business climate in
which it operated? Lobbying judges has become a very big business. Judges who
will cooperate are assets. They are like factories, shopping centers, or major
league baseball players. So the judicial lobbying industry does all it can to
maintain its asset base. It lobbies the President and the Senate to influence
who gets appointed as a federal judge. It really plays hardball to influence who gets appointed and confirmed as a Supreme Court justice.
If
one whom the industry thinks might be bad for business gets nominated, it will
spend millions to keep him from getting confirmed by the Senate. Liberal
lobbying groups spared no effort to keep Robert Bork and Clarence Thomas off
the Supreme Court.
Whenever
judicial “activism” is under attack, the industry springs to its defense with
public relations campaigns. It also attacks any suggestion that the people
amend the Constitution in a legitimate way. It does not want "the great
beast" touching the levers of power. Its shills loudly proclaim the party
line. "Don't mess with the Constitution. Our founders were very wise.
Let's not fool around with their inspired work."
Of
course this is a red herring. The industry views the Constitution as only a
symbol to distract attention from judicial usurpation. It can control us by
lobbying our employees, the judges, as long as we let decades go by without
giving those employees any marching orders.
Our
founders wanted us to amend the Constitution from time to time. Listen to
Thomas Jefferson: "The idea that institutions established for the use of
the nation cannot be touched nor modified, even to
make them answer their end . . . is most absurd."1
This
was
For
the most part,
Legal
scholars openly discuss these problems in academic writings. But their articles
rarely appear in popular media like the Sunday paper. And they’re rarely
written in plain English. The authors don’t refer to "usurpation."
They call it "judicial activism" or "non-interpretivism"
or "non-originalist
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adjudication."
That
way the public stays out of the debate. Legal scholars can argue endlessly
about the merits of stealth legislation by judges if they use an obscure
language. All we see is a boring academic debate over esoteric questions of
judicial technique. You will never see a popular uprising over those kinds of
issues.
If
the mass media had an open debate over whether judges ought to distort the
Constitution and stick their delusions in it, people's ears would perk up. We
would all have opinions on that. However, those who profit from the practice
don't want us to take part in that debate. They want us to stay out of the act.
Most
of those who control the media seem to support the industry’s agenda.
They want us to maintain the childish belief that courts faithfully transmit
the wisdom of our founders. That's why I wrote this book. Federal and state
judges are your employees. They're supposed to work for you. You have a right
to understand what they're doing to you. So now I'm going to translate a few of
the big words that describe their game. If you come across those words in a
magazine or newspaper, you can use this chapter as a dictionary.
Even
if you never come across those words in the newspaper, you should know what’s
going on in the law schools. The people who use those words are training the
judges of the future. In a few years, their students will be in a position to
cause you a lot of grief.2
Let's
start with "originalist" and "non-originalist." Originalist
legal theory says that sometimes the meaning of a passage in the Constitution
is not clear. In such cases, judges should determine what a consensus of those
who originally voted to accept that passage most likely understood it to mean.
There are not many originalists left.
Non-originalists say we think it is a lovely idea for the
judges to supply the meaning. But they should forget about the intent of those
who placed the passage in the Constitution. The judges should get the meaning
of passages in the Constitution from us and our friends. They should get the
meaning from the leading liberal thinkers of the present time. Most non-originalists are liberals, and they dominate our law
schools.
Let’s
look at one more debate among legal scholars. Let’s review the meaning of the
terms "interpretivist" and "non-interpretivist."
Interpretivitists say that the Supreme Court is supposed to interpret
the Constitution. That is, it’s supposed to clarify and declare the meaning
that is already there.
Non-interpretivists say that the Supreme Court has never
interpreted the Constitution. That idea is just a cover story for the rubes out
in
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good thing. No one elected by the “great beast” should
be trusted to make law. Only judges, after consulting with us, can make proper
law.2 They should just get on with it. They
should discard the childish notion that they need to pretend to follow the
Constitution. If the people have any real say over what our government does,
utopia will never come.
There
are about 6000 law professors in the
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CHAPTER
31
ASYLUM
ON THE
You’ve
probably never thought of it this way. But our judicial branch of government is
a lot like the Mafia. Sometimes the Mafia did good deeds. Citizens of Chicago,
who are well up in years, remember many such stories. The mob often protected
an Italian-American family or helped a widow in need.1 That maintained its image with the common people in town.
Federal
judges do good deeds too. Sometimes they strike down laws we don’t like. That
helps them maintain a benign image with the people. Their good image protects
them when they indulge in a massive abuse of power. This follows the teachings
of Machiavelli who wrote ". . . injuries are to be committed all at once, . . . but benefits are to be distilled by drops, that
the relish may be the greater."2
By
following lessons in The Prince, judges keep the people’s trust and good
will. However, they don’t selfishly hoard this goodwill. They sometimes spend
it to help their friends in politics.
Maybe
you wonder why they’d do that. You might think that members of Congress and
judges would be natural enemies. Congressmen are the only ones with the power
to get rid of a bad judge. They can impeach him. In the last two centuries,
Congress has impeached and removed about a dozen lower-ranking judges. Judges,
on the other hand, also have the power to cause congressmen a lot of grief.
They can strike down laws passed by Congress. That makes members of Congress
angry, right?
Sometimes
it does make them angry. But not always. Three or four
times every century, federal judges steal a big chunk of Congress’s turf. This
makes some members of Congress very angry. But the judges always follow
teachings in The Prince. They avoid making everyone angry at once. And
it takes a lopsided majority in Congress to slap down a rogue Court. So the
theft sticks. In a few years, those in Congress just forget about it.
There
are other reasons that Congress rarely interferes with rogue judges. Members of
Congress have also read The Prince, which says, "... princes are to
leave things of injustice and envy to . . . others, but acts of favour and grace are to be performed by themselves."3
When
the people demand that Congress move in a direction some of its members
dislike, judges often prevent it. Judges don’t have to answer to the voters.
They can tell us that what we want done violates the Constitution. In such
cases, many in Congress are grateful for the judicial power grab.
Do
you remember “term limits?” In the early 1990's, the people in several states
voted to limit the number of times their congressmen could run for
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reelection. The Supreme Court said that only Congress
had that power. The Court found that rule somewhere in the bogus constitution.
You sure won’t find it in the real one. Article I, Section 4 of the
Constitution gives states the power to regulate congressional elections. It
also allows Congress to overrule such laws. No Amendment changed that
arrangement.
So
Congress didn’t really need the judges’ help to avoid term limits. But most of
the people supported term limit measures. Members of Congress were afraid to
vote them down. It was much better to let the judges do their dirty work.
Judges don't have to face the voters. So, in 1994, federal judges made up a
cover story and “struck down” all the congressional term limits laws. That
Christmas they received some very nice cards and letters from their friends on
Capital Hill.
Our
government has a division of powers but it’s not exactly the way you learned in
school. The judicial branch, whose members are beyond the reach of the voters,
passes all the unpopular laws. The legislative branch, whose members must run
for reelection, just spreads around the money.
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CHAPTER
32
DESIRABLE
POLICY RESULTS
When
you have a weak case in an argument, it often helps to change the terms of that
argument. You find substitute words to distort what you are really promoting.
Defenders of judicial usurpation never use that term. Instead they call it
judicial activism. That way they can pretend that the only alternative is lazy
judges.
Judicial
activism has never been short of defenders. Special interests, whose agenda
lawless judges are pushing, want them to keep pushing it. So they defend what
the judges are doing. They claim that the Constitution is doing it. The judges
are only its agents. Then they shift attention off the judges and onto the
Constitution. They sing its praises. Our wonderful "Constitution"
wisely protects their cause.
Sooner
or later those special interests lose anyway. For one reason or another, the
judges change their biases. They scrap one body of doctrine and adopt another,
perhaps the exact opposite of the earlier one. Once or twice a century, the
judges get in bed with a new batch of what Machiavelli called the
"nobility."
Activist
judges have other defenders who stick with them even when they change their
biases. Most leaders of our institutions defend the judicial frauds without
regard to the issues involved. They have learned to live with the problem.
They’ve all got big budgets. When judicial activism gives them a hard time,
they can hire high-powered law firms and throw somebody else’s money at the
problem.
They’re
also afraid to rock the boat. If the “great beast” got wise, that would create
a lot of stress in our political system. God only knows where it would end. So
we are all taught, in school and in the mass media, to revere our courts. They
teach us that the courts are stalwart and reliable guardians of our cherished
freedom. They tell us to respect, as our sacred heritage, laws made up by
judges, laws that often conflict with the real Constitution.
Judicial
independence is a sacred cow. Our institutional leaders protect it even though
it repeatedly fouls the village well. Nobody blows the whistle in terms that
the public could understand. However, legal scholars and social scientists
freely discuss the truth among themselves. Yes indeed, they say. The judges
don't really interpret the Constitution.
Judges
speak for "fundamental law." They speak for “basic fairness.” Their
rulings reflect the values of "moral elites." Their rulings reflect our
values. That's what "fundamental law" is. It's our values and
morals. This is exactly what the judges should do, they tell each other. It's
clear that all those
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rubes out in the hinterlands can outvote us. God
forbid that anyone they elect should make any big decisions.
However,
the academics go on to say, we need a better cover story. It's getting harder
and harder to sell the idea that courts speak for the Constitution. Sooner or
later even the “great beast” will get wise.
So
far, the legal deep thinkers have come up with two main story lines. They have
two ideas that they hope will allow rule by judges to thrive in the long term.
The first idea is the evolving Constitution story. They package it as follows.
‘Why should a contemporary generation be bound to the will of a generation long
dead?’ This is a very creative scam. It uses an obvious truth to support a
position opposite to the one most clearly implied by that same truth.1
The
authors of this fraud stole Thomas Jefferson's ideas and turned them on their
head.
"The
idea that institutions established for the use of the nation cannot be touched
nor modified, even to make them answer their end . . . is most absurd . . . Yet
our lawyers and priests generally inculcate this doctrine, and suppose . . .
that the earth belongs to the dead and not the living." The
"priests" that
The
other main story line legal thinkers came up with they call the functional
argument. It says that rule by judges is OK because it produces "desirable
policy results." The members of "the great beast" want the wrong
policies. Therefore, we must arrange that judges, who are free to ignore them,
make all the important policy decisions.3
That's
the functional argument. Now, I assume you’ve read the last 31 chapters. They
covered lots of judicial policy results. Do you think they were all that
desirable?
SOME FAMILIAR POLICY RESULTS
Back
in Chapter 5, we found out that the Supreme Court helped cause the Civil War.
Maybe the war would have happened without the Dred
Scott decision. Maybe not. One can never be sure.
We
found out, in Chapter 7, that federal judges caused a lot of economic grief in
the early part of the twentieth century. You can argue they caused the Great
Depression. Maybe it too would have happened without their schemes and
mistakes. One can’t ever know that for sure either.
In
Chapters 10-14, we discussed how federal judges have long been restricting the
free exercise of religion. That doesn’t seem desirable at all
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much less constitutional. Chapters 15 through 20
described how lawless judges destroyed our urban public schools. They ruined
millions of educations and wasted many billions of dollars of our tax money.
They also helped cause the decay of cities, a troublesome income gap, and the
loss of millions of good jobs to our foreign competitors.
Chapters
21-23 described how judicial activism helped cause a crime wave. We estimated
that rogue judges deserve credit for about 100,000 murders and millions of
other crimes.
Now
let’s briefly review some other judicial policy results.
DEMOCRACY IN THE DUMPSTER
Judicial
activism is a major driver for failures elsewhere in government. You no doubt
think I've gone off the deep end here. How can I blame the judges for somebody
else's failure? That’s easy. Any facility that is not exercised will atrophy
and decay.
We
touched on this subject earlier. Elected politicians, like most of us, look out
for their own interests. They play the hand they are dealt. When they came on
the job, the system had long since come to accept judicial usurpation of their
responsibilities.
That
practice seemed impossible for them to change. So they adopted a career
strategy that allowed them to coexist with it. The judges, who the voters can't
touch, pass the unpopular laws. Those who get elected to public office can then
avoid making anyone angry. They can just spend our tax money pleasing people
who will finance their reelection. Consequently, our government is unresponsive
to public demands.
Of
course the public often wants some unwise things. So laws and policies enacted
in response to public demands, would sometimes produce
awful results. However, those results would be short lived. Ulysses S. Grant
once said that the best way to get rid of defective laws was to enforce them.
In a democracy, we would soon junk laws that didn't work. Defective laws passed
by judges are a lot harder to junk. Those who claim to speak for God can’t
admit their mistakes.
RATIONAL EXPECTATIONS
It
may not be obvious. But one can make a case that judicial activism caused voter
apathy. In 1996, a presidential election year, about 48 1/2 percent of the
eligible voters went to the polls. That was the lowest turnout in about seventy
years. Yet it was only a little lower than it had been in most of those
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years. The average voter turnout, during the last
two-thirds of the twentieth century, was well under 60 percent. It fell to
about 50 percent from 1980 on. In off-year or primary elections, voter turnout
often falls into the 20 to 30 percent range. So American voters have long had a
low level of interest in elections.4
Even
some people who do go to the polls throw their vote away. They express their
frustration by voting for candidates who are only symbols. During the 1990's, a
fellow named Ross Perot twice ran for president on a third party ticket. Mr.
Perot got a fair amount of support. He received about 10 percent of the vote in
1996 and almost 20 percent four years earlier. Most of the folks who pulled the
lever for Ross Perot knew that they were throwing their vote away. Counting
those who stayed away, during the 1990's, and those
who voted for symbols, two-thirds of us voted for "none of the
above."
We
see much hand wringing over voter apathy and hear much discussion of its
causes. The hand wringers view low voter turnout as a symptom of a deeper
problem. If the people don’t bother voting, they must not really believe in the
system. So they won’t support what that system decides to do. They won't trust
the decision makers if they had no say in picking them.
A
professor has suggested a solution to the problem. We'll punish those who fail
to vote. We'll levy a fine on them. This is true liberal thinking. The moral
elites know what's good for everybody else. They'll make sure our vote is
meaningless. But they'll force us to go through the motions anyway.5
My
own belief is that those who don't bother to vote are behaving in a sensible
way. As economists would say, their behavior follows the “theory of rational
expectations.” The theory says that, on average, most people will take account
of all the data they have. They will then make rational choices based on that
data. Thomas Jefferson said roughly the same thing. But he didn't know he was
talking about economics.6
Based
on the theory of rational expectations, low voter turnout makes perfect sense.
The public is smart enough to see that voting makes little difference. They
know that the system isn’t working and that they are helpless to change that by
their vote. The people never see the reasons. They just blame Congress or the
President. They don't see the judges' role in the systemic failure.
THE “GREAT BEAST” IS RESTLESS
Many
people recognize that somebody kidnaped our
democracy. And they are angry about it. Some go off the deep end. They put
their faith in armed "militias," and "common-law-courts."
The common-law-court fringe saw that our judiciary was running a giant fraud.
So they figured they’d try it too. The
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judges got a little alarmed by this. The chief
justices of all the state supreme courts appointed a committee to figure out
what to do about common-law-courts.7
When
they figure out what to do about common-law-courts, our top judges are going to
tackle “jury nullification.” Jurors in increasing numbers are ignoring the judges’s instructions and voting their own consciences.
They even have a mass movement called “The Fully Informed Jury Association.”
Its members know that renegade judges have been nullifying legitimate laws for two-hundred-years.
They figure if judges can do it, why not jurors.8
Most
of the 60 to 70 percent who vote for “none of the above” don't get involved in
anything that extreme. They just don’t bother voting. Or they vote for a symbol
like Ross Perot. Ross knew that the people were aware our democracy was in bad
shape. They were looking for remedies. So he offered some.
However,
his remedies addressed symptoms, not causes. They addressed things like a
growing income gap and the fact that good jobs were fleeing abroad. They
addressed corrupt campaign funding practices.
Any
real cure has to go much deeper. It has to deal with the disease, not the
symptoms. It has to deal with the cancer of Machiavelli's ideas driving our
judicial branch of government. Any real cure must address the disease of
“Government by Judiciary.”9
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CHAPTER
33
AND
ALL SHALL BE USURPED
How
does it feel to be a part of the "great beast?”
That's what they say Alexander Hamilton called you in a debate with Thomas
Jefferson.
Advocates
of
Our
nation’s founders gave us a living Constitution. Its Article V specified the
only lawful way to evolve it to meet the needs of changing times.
When
the people got a look at the new Constitution, they thought it was pretty good.
But it had some problems. It did not make it clear enough that the federal
government was our servant, not our master. They went ahead and approved it anyway.
Then they used the process in Article V to fix its problems. They used it to
add the Bill of Rights.
The
people have used that process to amend the Constitution twenty seven times in
the last two centuries. On average, that's about once every eight years. After
the Civil War, we used it three times within a five-year period. We used it to
end slavery, to grant citizenship to the freed slaves, and then to insure their
right to vote. For the most part, our living Constitution has done the job our
founders designed it to do.
The
Federalists lost the big arguments about what our Constitution should contain.
We did not start out with a king. All power came from the people. That doesn't
mean, however, that the more perverse Federalist ideas died and were buried.
Federalists packed the courts. Their judges began a practice that continues
today. They twisted and misread the Constitution so they could steal
legislative power. They’ve continued that practice ever since.
Most
of the people had to spend long days in hard work. They lacked time and energy
to pay close attention to what their judicial employees were
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doing. So judges, and those who influenced them, stole
more control over the rest of us each decade.
No
doubt our judicial “princes and princesses” made some decisions that were
better than the people would have made in the same situations. On average, they
were better educated than the rest of us. But they were no more honest or
trustworthy. In fact, they were corrupted by lack of effective checks on their
power. And their biases tended to conform to the interests of lobbyists rather
than to ours. Therefore, our judicial “princes and princesses” also made many
decisions that were a lot worse than the people would have made. Some of their
decisions were terrible.
We've
somehow survived more than two centuries of mischief by renegade judges. Every
70 years, or so, the people become alarmed and try to curb that mischief. In
the 1790's, we passed the Eleventh Amendment to restrict judicial power. We
also impeached a rogue judge named Samuel Chase. The Supreme Court just refused
to obey the Eleventh Amendment. And the Senate failed to convict and remove
Chase.
After
the Civil War, we passed the Fourteenth Amendment to undo mischief perpetrated
by the
In
the 1930's, FDR attacked a Court that helped cause the Great Depression. The
justices again laid low for a few years. Then they imposed a perverse new
national religion on us.
In
the 1980's, Ronald Reagan made a determined effort to appoint judges who would
interpret the Constitution as those we elected had written it. Liberals
complained that this was an evil act. It was an attempt to "Rewrite the
Constitution."1 This, of course, was bunk. It also exaggerated
the degree of Reagan’s success.
Judicial
candidates he nominated had to be approved by a Senate composed mainly of New
Federalists. Their loyalty to the bogus constitution was stronger than their
loyalty to the real one. However, Reagan's judges at least slowed the rate of
new judicial power grabs. The frequency of new "landmark decisions"
fell off a bit. Reagan’s appointees also backtracked, to a degree, on a few of
the
The
recent slowdown in new landmark decisions doesn't mean that judicial usurpation
became less of a problem. State courts took up the slack. We discussed some of
their mischief in Chapters 12 and 20. Courts, federal and state, still make
most of the big changes in the laws we live under.
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THE CUSTOMARY WEAPON
Let's
look again at a passage from George Washington's farewell address. I first
mentioned it in Chapter 9. "Let there be no usurpation; for . . . this . .
. is the customary weapon by which free governments are destroyed."
Thomas
Jefferson issued a similar warning: “all shall be usurped from the
Have
the judges destroyed our free government yet? Or can we still effect a cure? This is a good question. I can't say that I
know the answer. I do know that the judges haven't yet stolen all government
powers. Back in the early 1970's, four members of the Supreme Court voted to
rule that our Constitution mandated a socialist form of government. One more
vote would have done it. But the judges paused at the brink. They lacked a
Great Prince of Usurpation to lead them.3
Now
Soviet communism, the big sister of Acluism, has
self-destructed. Even federal judges see the defects of socialism. So maybe
they will not soon repeat this effort. Some day the judges might even dump Acluism as an official religion. When a new faction of
nobles replaces ACLU liberals on the national stage, history shows that the
judges will jump into bed with that faction. Machiavelli taught his students
not to place a high value on loyalty.4
So
the judiciary will probably move
A MERE SCARECROW
In
the end it all comes down to this question. Can anything be done to cure the
disease, or at least arrest its progress? Impeachment is not likely to work. It
didn’t work in 1805. Thomas Jefferson then complained that it was "a mere
scarecrow."5
Since
then, the problem has gotten much worse. Yet Congress never impeached and
convicted a U. S. Supreme Court justice. Impeachment of any kind of judge,
federal or state, has been quite rare.
State
judges, even state supreme court judges, can usually
be removed by the voters. Or the voters can add measures to their state
constitutions to curb judicial powers. That will not be easy. The judicial
usurpation industry will fight like an army of cornered rats.
On
the federal level, the problem is even tougher. In principle, Congress could
take back some turf from the judges. The Constitution clearly states that
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Congress has this right. But the judges might say that other things in their
constitution overrule the language in the real Constitution. They might rule
that what the Constitution says is "unconstitutional." They’ve done
it before. Do you remember forced busing?
Perhaps
the states could demand a constitutional convention. They could then take
control of the whole show. However, three quarters of state legislatures would
need to join in making the demand. Two centuries of history say the states are
not likely to act in concert.
We
still have no answer to the big question. Is there any hope that
OUR “
Maybe
you’ve noticed recent evidence that Americans are no longer fit for
self-government. A professor named Michael J. Sandel
described, in his book Democracy’s Discontent, the liberal “procedural
republic” we’ve long lived under. Sandel suggested
that the experience has robbed us of the “qualities of character that equip
citizens to share in self-rule.”6 Judges are the architects of our
“procedural republic.” Beginning in the 1950's, courts immersed us in a tidal
wave of “procedural” stealth legislation. We’re still drowning in it. How could
our character as a people not be damaged by almost five decades of rule by
unelected judges?
By
the end of 1998, it began to look like we’re hopeless. Two-thirds of us
continued to applaud the grotesque spectacle of the
In
any case, that’s where we’re headed. Our judicial branch of government is on
the threshold of consolidating absolute power. As you read this, renegade
judges on state supreme courts all over
During
the last decade, the U. S. Supreme Court has been a bit more restrained.
However, Ronald Reagan’s appointees are nearing retirement age.
The
post-Rehnquist Supreme Court, which will take shape shortly after the year
2000, may be the one to finally fulfill Thomas Jefferson’s prediction:
“and all shall be usurped from the
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If
you think we’re still fit to govern ourselves, maybe you’d better get worried.
The First Great Princess of Usurpation could be waiting in the wings.
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NOTES
AND CITATIONS
NOTES FOR INTRODUCTION
1. See, for example, “Feathered Dinosaur
Ruffles Paleontology,” USN&WR, July 6, 1998, page 62, an article by Laura Tangley.
2. My description of the theory of evolution
is from the
3. I borrowed the phrase “train of abuses and
usurpations” from The Declaration of Independence.
4. Books by legal scholars and judges, which
criticize stealth legislation by judges, abound. See, for example, Bork (1990),
Berger, Glendon, Neuhaus et. al., and Scalia.
NOTES FOR CHAPTER 1
1. Information on Hammurabi
was taken from the Encarta 96 CD ROM Encyclopedia.
2. Members of
3. The account of judicial outrages during
the 1790's was taken mainly from Beveridge, Vol. III,
pages 23-49. Miller (mainly on pages 108-139) and Bowers also provided part of
the story. Bowers’ Chapter XVII is entitled “The Reign of Terror.”
4. The story about the
5. See “Judge orders 2 AJC reporters jailed.
Paper appeals order requiring journalists to reveal sources,” by Jay Croft,
Atlanta Journal-Constitution, June 4, 1999.
6. The story about the lady who was jailed
for running out of court sobbing was in USA Today, April 25, 1996.
7. See “McDougal Defense Likens Starr Tactics
to Nazis,” Story by Marcus Kabel, Reuters News
Service, April 8, 1999. See also “Juror Says He Understood Why She Wouldn’t
Talk,” by Chris Osher, Arkansas Democrat-Gazette, April 13, 1999.
8. See the U. S.
Supreme Court’s response to a stay application in
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Spallone v.
9. The federal government publishes U. S.
Supreme Court opinions in a set of books named the United States Reports.
Volume 504 covered about six weeks ending in June of 1992. Of course some
Supreme Court opinions don’t concern the Constitution. They concern, for
example, a federal statute. So one can’t claim all quarter of a million pages
in the United States Reports is part of the bogus constitution. However,
the eleven federal circuit appeal courts also hand down opinions that
effectively amend the Constitution. Many of those opinions are never reviewed
by the Supreme Court. So, if one includes the relevant circuit court opinions,
the quarter of a million page estimate isn’t too high. It might be way too low.
According to the 1985
book by Posner (Table 4.3, page 114) Supreme Court opinions published in 1983
contained about 1.3 million words. That was a peak year. An average word count,
over two centuries, would probably be less than half that number, say 0.5
million words per year. The bogus constitution, therefore, must contain about
100 million words.
10. Huston, (Pages 122-3 and 136-7) provided
the
11. Spano
v.
12. The Pierson v. Ray ruling is
described in a footnote on page 17 of Berger. I found a more detailed account,
featuring the “maliciously and corruptly” quote, on the world
wide web at http://www.ecsd.com/~rhhedgz1/tedped1.html. I also found the
entire opinion on line at the FindLaw web site
http://www.findlaw.com/casecode/supreme.html.
NOTES FOR CHAPTER 2
1. Books by Van Caenegem
and Hogue provided most of the history of the English common law discussed in
this section.
2. See “Laying down the Law,” by Paul
Johnson, Wall Street Journal, page A22, March 10,
1999.
3. See Hogue, page 244.
4. Alexander Hamilton, in his Federalist
Number 78, wrote that our judiciary, since it controlled neither “purse” nor
“sword,” was the “least dangerous branch.”
5. See Scalia,
pages 3-47, especially pages 39 and 40.
6. The story of the Northeast Ohio child rape
ruling was taken from the Cleveland Plain Dealer, August 1, 1996, P 3B. It was
written by Debra Dennis.
7. The 1992 Koon and Powell trial was discussed in the Cleveland Plain
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Dealer, Feb. 21, 1996.
8. My statistics on the L. A. riots are from Delk. See the front cover flap and pages 17, 222, 232, and
256. An interesting review of that book was posted on the world
wide web at http://leav-www.army.mil/fmso/fmso.htm. The review was
authored by William W. Wendell, a retired U. S. Army Colonel. Essentially the
same information can be found in the book, Official Negligence, by Lou
Cannon. It was reviewed by Christopher Caldwell in the Wall Street Journal,
February 5, 1998,
9. The story about Rodney King’s recording
company appeared in the Cleveland Plain Dealer, June 2, 1998. The article
originated with the Los Angeles Daily News.
NOTES FOR CHAPTER 3
1. The flag burning opinion was
2. The American Legion statements quoted were
taken from a Letter to the Editor published by The Washington Post on July 25,
1998. The letter’s author was Anthony G. Jordan, the Legion’s National
Commander.
3. See Lazarus, page 26.
4. I found the Kissinger quote in Fitzhenry, page 288.
5. The 1952
6. The "wise, rich" etc. quote is
from McCloskey, page 50.
7.
8. The “great beast” quote is from Platt,
page 251.
9. See the translation by Edward Dacres published by Daniel Pakeman
in 1663. Various other printings of the same translation appeared between 1663
and 1720. Quotations in this book are from an English translation published by
George Routledge & Sons in 1889. According to the
Introduction by Professor Henry Morley, the 1889 publication contains a
translation first published in “the folio of 1674.”
10. All Machiavelli quotes in this book are
from the George Routledge & Sons 1889 publication
of The Prince. The quotes in this paragraph are from that work’s Chapter
IX, page 63.
11. See, for example, Churchill, Vol. I,
pages 242-257.
12. Ideas from The Prince described in
this section were taken from that book’s Chapters III, XVIII, and IX
respectively.
13. The
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NOTES FOR CHAPTER 4
1. The story of the
2. In 1996, the
However, even
allowing for that highly suspect loophole, the ruling was a surprising bit of
judicial honesty. That much honesty sent a four-judge minority into fits. They
wrote a 118-page diatribe. It said that the ruling was "shocking,
. . . fundamentally mistaken . . . simply irresponsible."
This reaction reminds
me of an attitude common among thieves. Soon after they steal your stuff they
start to think of it as theirs. They become very angry if you find a way to get
it back. Imagine how a burglar's descendants would feel if you took back your
family's silverware two centuries after their ancestors had stolen it.
3. The ruling in favor of a Dutch lawyer is
described in Woodward and Armstrong, page 303-5. It cites "In Re
Griffiths, 1972."
4. See Warren, Volume III, pages 93-102.
5. The history of the Eleventh Amendment
presented in this chapter drew on Grimes, pages 18-19.
6. Accounts of the Marshall and Taney Courts’
refusal to obey the Eleventh Amendment were found in Orth,
pages 34 and 42.
7. The first scam to get around the Eleventh
Amendment is described in the 1996 Grolier Online Encyclopedia. It was written
by Harold W. Chase in his commentary on the Constitution. The implied waiver
scam is described in Orth, mainly pages 142-3.
Exceptions for cities and counties are described on his pages 110-120.
8. The Fletcher v. Peck case was
discussed in Smith, 1996, Jean E., (pages 388-94, and 645-6), Hobson (pages
82-88), and Bork, 1990.
9. Machiavelli said, “ .
. . in the actions of all men, especially princes, where no man has power to
judge, everyone looks to the end.” See page 112, Chapter 18.
10. This account is mainly from McCloskey,
Chapter Two and
11. See Hogue, pages 205 and 244.
12. See Bork (1990), page 22.
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13. The Chase impeachment story was taken
from many sources. Rehnquist has a fairly thorough account.
14. The story of the Liberty Bell cracking
while tolling for John Marshall can be found in many places. See, for example,
the 1996 Encarta CD ROM Encyclopedia.
NOTES FOR CHAPTER 5
1. See D'Souza,
1995, for a discussion of the founders' attitudes toward slavery. The Dred Scott ruling is described in many places. See, for
example, Berger, Swisher, Fairman, and Fehrenbacher.
2. The Alexander Hamilton quote can be found
in Berger, 1977, page 196.
3. See Fehrenbacher,
Chapters 21-23, for an account of the history of the Dred
Scott decision. The bias of the
4. See, for example, Heckman, pages 74 and
85.
5.
6. The notion that the Dred
Scott decision helped cause the Civil War is mentioned in a few places. See,
for example, Bork, 1990, Fehrenbacher, 1978, and
especially, Acheson, 1961. Fehrenbacher (page 573)
has a quote from Acheson (page 120) saying that the Dred
Scott decision "practically started a war." I have not seen the point
made any stronger than that.
7. Population and casualty statistics were
taken from Price, 1961. I only counted the white population. Black slaves were
hardly a strategic asset to the South. Far more Blacks fought on the Union side
than on the Confederate side. My measure of industrial power of North vs. South
was compiled from tables of the value of the manufactured products of the
various states, in 1860, given in Dodd, 1993.
NOTES FOR CHAPTER 6
1. The Fourteenth Amendment has five
Sections. It can be found, along with the rest of the Constitution, in the
Appendix. The part quoted from here is Section 2.
2. See page 68
of the essay by Tribe in A Matter of Interpretation, by Antonin
195
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Scalia.
3. An account of the Fourteenth Amendment’s
history relative to school segregation can be found in Berger, 1977, Chapters 4
and 7.
4. See Mohr, 1978, pages 195-225 to review
the history of mid 19th Century abortion laws.
5. The quote from Ex Parte
6. The Supreme Court’s attempts to obstruct
President Lincoln’s conduct of the Civil War were discussed in Boudin, Volume II, Chapter XXI.
7. See Warren, Volume III, page 170. The
Fourteenth Amendment was adopted by Congress on June 13, 1866 and ratified by a
sufficient number of states on July 9, 1868.
8.
9.
10. The description of John A. Bingham as
“the leading House moderate” was on page 86 of Maltz.
The statement that he was “one of the best constitutional lawyers in Congress”
was in Boudin, Volume II, page
75.
11. See Warren, Volume III, pages 170-171.
Most of the Bingham quote also appears in Boudin,
Vol. II, page 75.
12. Many professors studied the history of
the Fourteenth Amendment and wrote books aimed at explaining the intent of its
framers. Examples are Berger, 1977, Crosskey, 1953, Fairman, 1971, and Maltz, 1990.
13. Legal scholars began using the term
"convenient vagueness" to describe the rationale for judges’ theft of
legislative powers at least as early as 1924. See Berger, 1977. page 193.
14. See, for example, Fairman,
Maltz or Berger.
15. My account of the Slaughter House Cases
was based mainly on material in Fairman, 1971,
Chapter XXI.
16. Quotes from the Slaughter House majority
opinion were found at the Cornell Law school web site,
http://www.law.cornell.edu/.
NOTES FOR CHAPTER 7
1. I first became aware of this claim through
an article by Peter Dreier in the Cleveland Plain Dealer, March 3, 1995, page
12-J. The title of the article was “A political allegory of failed American
populist movement.” Professor Dreier, at the time, was at
196
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Parker, David B. “The Rise and Fall of The Wonderful Wizard of Oz as a "Parable on
Populism,"” Journal of The
Littlefield, Henry M., ‘The Wizard of Oz:
Parable on Populism’ American Quarterly, XVI, (1964), pages 47-58.
2. My description of the Wizard’s act is from
Hearn, Chapters xi and xv.
3. This is not a totally new claim. But I’ve
never seen it clearly stated either. A law professor, named Fred Rodell, said in his 1955 book, Nine Men, that . . . “(Supreme
Court judges) . . . were not entirely unresponsible .
. . for the breadlines and apple salesmen,” That’s as strong as I’ve seen it
said. In all likelihood the reasons are partly political. For three-quarters of
a century, Democrats have gotten milage out of
blaming Republican President Herbert Hoover.
4. The
5. A good account of the Court’s use of the
substantive due process doctrine between 1890 and 1937 can be found in McCloskey,
Chapter 5.
6. See Schwartz (Bernard), page 181.
7. Schwartz, page 183.
8. Schwartz, page 184.
9. See McCloskey, page 101.
10. Schwartz, pages 190-202.
11. Schwartz, page 233.
12. Schwartz, pages 217 ff.
13. Schwartz, page 218
14. See Batra, page
125. The share of national wealth held by the richest 1 percent of families may
now (late 1998) be considered even higher than it was in 1929. It depends on
whose numbers you accept. I’ve seen claims ranging from 21 percent to 47.5
percent. Many analysts exclude, from family wealth, things like cars, home
equity, and private pensions. They also exclude the net present value of
expected social security, medicare, food stamps,
welfare payments, and other entitlements. If you count all these often excluded
assets and benefits the share of wealth held by the richest 1 percent of
families may presently be as little as half its value in 1929. See, for
example, the book by Cox and Elm. See also the following special publications
and news articles.
Berry, Wendy. “
Hinderaker, John H. and Scott W. Johnson. “The Truth About Income
Inequality,” Center of the American Experiment,
Shmavlonian, Nadya. “Staying On
Target,”
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1998, Outlook Section.
Wolff, Edward N.
“Top Heavy: A Study of the Increasing Inequality of Wealth in
15. See Garraty,
page 8 and Batra, pages 123-9.
NOTES FOR CHAPTER 8
1. Huston’s Chapter 2 is entitled “Son of the
Vikings.” Pollack (page 17) suggested
2. See Clare, page 6.
3. See, for example, Cohat.
4. Van Caenegem’s
Chapter 1 describes the origin of the common law under Norman Kings. The
5. I found a description of the
6. The six Amendments are the Fourth, Fifth,
Sixth, Eighth, Thirteenth and Fourteenth. Read them in the Appendix and see if
you don’t agree with my statement.
7. The Japanese internment is discussed in
Cray, pages 114-23. I found the claim that the FBI had opposed the move in two
letters published in the Washington Post on August 19, 1998. They writers were
Grant Ichikawa and Lowell K. Dyson.
8.
9. Cray, pages 320-1.
10. Cray, pages 329-35.
11. The fact that communist governments
murdered 85-100 million people was the main point of the 1997 study, Le Livre Noir du Communism (The
Black Book on Communism) by French historians Stephane
Courtois and others. English language summaries were
presented in various news accounts. See, for example, “Communism's 100 Million
Victims,” The New Australian, No. 76, 11-17 May 1998. I don’t believe the book
is yet available in English.
12. See the book by Weinstein and Vassiliev.
13. See Gaddis, page 210.
14. See
"Twenty-Four Lies About the Cold War," by
Gabriel Schoenfeld,
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Commentary Magazine, Vol. 107, No. 3, March 1999, page 28 ff.
15. See Gaddis, page 238.
16. See Cray, page 338.
17. See Levinson 1994, page 188. The case was
Robel v. United States.
1967.
18. See Alexander Hamilton’s Federalist
Number 78.
19. See Cray, page 352.
20. See The Prince, Chapter IV, page
30.
21. Cray, page 433.
22. Cray, page 436.
23. See Chapter 6. See also Berger, Chapter
5. Section 2 of the Fourteenth Amendment clearly leaves control of voting
rights to the states. But it gives the states a cost-benefit problem to solve
if they choose not to allow all of their male citizens to vote. Of course the
male citizens whose right to vote was still in question were African Americans,
although the Amendment does not spell that out.
24. I estimated the populations of
NOTES FOR CHAPTER 9
1. The first John Marshall quote was taken
from his minority opinion in Ogden v. Saunders, 1827. It’s discussed in Konefsky on page 139. The entire opinion was found at the FindLaw web site: http://caselaw.findlaw.com/scripts/
getcase.pl?navby=case&court=US&vol=25&page=213.
The second
quote is from Osborn v. Bank of the United States, 1824. A longer
excerpt from the opinion can be found in Hobson on page 137.
2. I prepared Figure 1 using data excerpted
from Table 2-10 in Epstein. Epstein and his colleagues determined which
decisions their book would identify as “landmark.” They listed the landmark
cases under various categories. I found one case listed under
two categories. So I didn’t count it the second time. There may be a few other
duplicate listings that I missed. If so, my numbers would be a bit high.
3. A transcript of
4. Both quotes can be found in
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5.
6. The
7. See, for example, Lincoln/Van Doren, 1942.
8. A discussion of the 1849 Luther v.
Borden case was found on the Internet. It was part of a lecture summary for
the course Politics 115a, Part 1,
9. Lord Acton’s famous quote can be found in
any encyclopedia.
NOTES FOR CHAPTER 10
1. This story of the RFRA was drawn from
several newspaper articles. They include a column by George Will in the
Cleveland Plain Dealer (June 27, 1997, page 11-B), and an article by Mary Deibel also in the Cleveland Plain dealer (June 26, 1997,
page 1-A). See also a July 6, 1997 column by Clarence Page. I came across it at
the Salt Lake City Tribune’s web site,
http://www.sltrib.com/97/jul/070697/COMMENTA/25296.htm.
A statement of
Congress’s purpose in passing the Act was found at Cornell University Law school’s web site,
http://www4.law.cornell.edu/uscode/42/2000bb.html.
2. See McCloskey, pages 113-20.
3. See, for example, Levinson (1988), who
cites many earlier works on the subject.
4. See the beginning of Machiavelli’s Chapter
XI: " . . .they (ecclesiastical principalities) are gained either by
fortune or virtue, but kept without either, being supported by ancient statutes
universally received in the Christian Church, which are of such power and
authority they do keep their prince in his dignity, let his conversation or
conduct be what it will.”
5. These quotes were taken from Konefsky, pages 131 and 142. Konefsky
attributes the first (“most sacred” legal principles) to a biography of
6. Jupiter's thunderbolts are mentioned in Eliade (page 78).
7. The Oliver Wendell Holmes quote is from Glendon, 1994, page 186.
200
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8. Daniel Boorstin
used the term “secular papacy” in the forward to McCloskey’s famous book, The
American Supreme Court.
9. See Seeley, pages 54 and 55.
10. The academic definition of religion is
from Noss (1980, page 173). Noss
was quoting Paul Tillich.
NOTES FOR CHAPTER 11
1. A lengthy excerpt from the 1892 Church
of the Holy Trinity v. United States decision was found on the world wide web at http://www.cortland.edu/www/
polsci/church.html. I didn’t count the 87 laws, court cases and
anecdotes. The count was kindly provided by another web page located at
http://users.erols.com/bjcpa/pubs/barton.html.
2. My account of the architecture of the
Supreme Court Building was drawn from Witt, page 781, as was the ‘
3. As far as I know,
4. Schwartz, Bernard, 1993, page 234.
5. Congress adopted the First Amendment on
the same day it passed the Northwest Ordinance which said, “Knowledge,
morality, and religion being essential for the happiness of mankind, schools
and the means of education are to be forever encouraged.” That’s a fairly clear
statement that the founders intended public schools to teach religion. (See
below for source.)
In the
Declaration of Independence Thomas Jefferson referred to our “Creator” who
endowed us “with certain inalienable rights.” That’s equivalent to a statement
that all legitimate government power comes from God and is subject to God’s
law. In his farewell address, George Washington called “religion and morality .
. . indispensable supports (for) political prosperity.” And he cautioned against
the “supposition that morality can be maintained without religion.” (See
Kaufman et. al., page 24).
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John Adams, our
second President, said, “Our Constitution was made only for a moral and
religious people. It is wholly inadequate for the government of any other.”
(See below for source.)
Abraham
Lincoln, who laid the political and moral foundation for the Fourteenth
Amendment, said, “it is more important to know that we
are on God’s side.” (See Fitzhenry, page 143).
The John Adams
quote and the quote from the Northwest Ordinance were both taken from the July,
1998 issue of Washington Watch, a publication of The Family Research Council. I
read it on line at http://www.frc.org/wwatch/ww98g.html. See also note 1 above.
6. Until the 1940's, almost every lawyer knew
that the First Amendment was only intended to protect the people and the states
from the federal government. In the 1940's, 150 years after the enactment of
the First Amendment and almost 80 years after the enactment of the Fourteenth,
the Supreme Court suddenly declared that this idea was all wrong. See, for
example, McKeever, 1993, pages 245-63. Cases he cited
included Cantwell v.
In
1962 the Supreme Court outlawed prayer or Bible reading in public schools (see
Pollack, page 120, the case cited was Engle v. Vitale). These rulings,
besides being contrary to the intention of the framers of the Constitution,
were also unpopular with the people. Polls in 1980 and 1991 showed 72 percent
and 78 percent respectively in favor of prayer in public schools (see McKeever, page 246).
7. The ACLU vs. AA story was based on two
articles in the Cleveland Plain Dealer. The first was a news story written by
James Ewinger, (June 21, 1997, page 1-A). The second
was a column by Dick Feigler (June 25, 1997, page
2-A).
8. See Bork, 1996, for a full description of
radical individualism and radical egalitarianism. I don't want to put words in
his mouth. As far as I recall, his analysis said nothing about the religious
aspects of these dogmas.
9. Christ's statement of the Two Great
Commandments was taken from the Revised Standard Version of the King James
Bible; Matthew, 22:34-40.
NOTES FOR CHAPTER 12
1. Data on the rate of illegitimate births
was taken from Bork (1996, page 155). The 1997 number came from an article by
Ben Wattenberg that appeared in the Cleveland Plain Dealer (July 24, 1997, page
13A).
2. Many liberals do not agree that this is a
problem. They think that the loss of family ties is just fine. They simply
redefine "family" to include any collection of people who happen to
be living together.
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3. This section draws on material in McKeever, pages 84-85, and 229-235.
4. Woodward (pages 233-5) described movie day
in the Supreme Court.
5. See, for example, “‘R’ rating has lost its
meaning,” by Michael H. Kleinschrodt, Newhouse News Service. I came across the article in the
Cleveland Plain Dealer, August 2, 1999.
6. See, for example, MacKinnon.
7. McKeever (see
pages 215-25) quoted Byron White’s opinion in Bowers v. Hardwick (1986),
for the fact that all 50 states outlawed homosexual practices until 1961.
8. The "Naked Viewpoint
Discrimination" story was from the Chronicle of Higher Education, Feb. 9,
1996. The article was written by Patrick Healy.
9. A story in The Wall Street Journal (June
18, 1996, page A1) described the Hawaiian Supreme Court’s ruling on a right to
“gay” marriages. That story was written by Paul M. Barrett.
10. The people of
11. I first read about the
12. See the Bibliography for publication data
on Hillary Clinton's 1996 book, It Takes a Village.
13. See, for example, “Students saw signs of
trouble in gunmen,” by Valerie Richardson, The Washington Times online, April
22, 1999. See also, “The Culture of Death,” by Peggy Noonan, The Wall Street
Journal, April 29, 1999.
14. See “Selleck,
O’Donnell debate gun control,” Mr. Showbiz News, May 20, 1999. You can
find a menu of similar stories if you visit the About.com talk-show-gossip web
site at http://talkshows.tqn.com/blrosienews.htm.
15. On June 4, 1999,
NOTES FOR CHAPTER 13
1. See Mansbridge,
Chapters 2, 7, and 9.
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2. I found reference to Ruth Bader Ginsburg's
remarks on the evolution of the ERA in "Steamrolled and Bulldozed,"
an essay by John Leo in USN&WR, May 19, 1997, page 17. According to Leo, an
article in The Women's Quarterly entitled "How we Got the ERA" covers more or less the same ground as
this chapter.
NOTES FOR CHAPTER 14
1. My copy of The Brothers Karamazov
is the "Signet Classic" version copyrighted by Manuel Komroff and published by The New American library in 1957.
"The Grand Inquisitor" begins on Page 227. Numerous other editions,
by different publishers, contain essentially the same early twentieth century
translation by Constance Garnett.
NOTES FOR CHAPTER 15
1. The federal government did harass a few
hundred German Americans during World War II. See, for example, “Suspicious
Minds: How The Government Hounded Otto Franke
During World War II,” By Lewis H. Diuguid,
Cleveland Plain Dealer Sunday Magazine, Feb. 21, 1999, page 9.
I’ve also found claims that around ten
thousand German and Italian aliens were interned during the war.
2. Edward Lazarus, a liberal legal scholar,
touched on this point in his 1998 expose of politics and bias in the Supreme
Court. See his page 243. Raoul Berger documented, in
detail, the intention of the framers of the Fourteenth Amendment in his Government
by Judiciary. He covered school desegregation in detail in his Chapter 7.
Consult Berger for the primary sources of the foregoing statements.
3. The historical information in this section
was based mainly on material in Berger, 1977, Chapter 7. See, in particular,
his page 131.
4. See Hickock and
McDowell, pages 198-200.
5. See “When Schools Made a Difference,” by
6. See “The Year the Whites Left the City” by
D'Vera Cohn, Washington Post Staff Writer, The
Washington Post, July 19, 1999, page A01.
7.
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8. See “Where Are the Fathers?” by Colbert I.
King, Washington Post, July 10, 1999, page A19.
9. See Graglia,
pages 34-7
10. See Epstein, Lee (1994), Table 9-4, page
621. Epstein cited Gerald N. Rosenberg, The Hollow Hope, U. Chicago
Press, 1991.
11. See Note 9 above. See, also, Levinson,
1994, pages 190-191.
12. Green v. County School Board of New
Kent County and Raney v. Board of Education of the Gould School District.
See Graglia, pp 67-75.
NOTES FOR CHAPTER 16
1. Around the end of 1996, there was much
discussion of ebonics in the press. See, for example,
the piece in USA Today, Dec. 20, 1996, page 3A. It was written by Anita
Manning.
2. The term “the hostage theory” was found in
the book by Bentley.
3. The story of the "plantation" in
the Supreme Court was found in Woodward, pages 288 and 289.
4. See Posner, 1996, pages 340-1.
NOTES FOR CHAPTER 17
1. The story of forty-six felons on the
payroll came from the Cleveland Plain Dealer, March 22, 1998, page 1-A. Timothy
Heider and Scott Stephens wrote the piece.
2. The $10 million figure came from a column
by Dick Feigler in the Cleveland Plain Dealer,
January 10, 1997, page 2-A. The $105 million figure came from a Peat Marwick
analysis in 1995.
3. The $1.2 billion figure for the projected
cost of the consent decree came from the Cleveland Plain Dealer, November 20,
1997, page 1-A. The article was written by Scott Stephens and John F. Hagan.
4. The 595 out of 600 ranking was published
in "The Education Equation," a Cleveland Plain Dealer special section
published in August of 1995. The authors were David Hall and others. The
5. The discussion of legal fees came from The
Cleveland Plain Dealer, January 9 and 10, 1997. The January 9 article was an
editorial. The January 10 piece (previously mentioned) was a column by Dick Feigler .
6. The number of
students harmed by the consent decree and the number of
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student-hours wasted on buses were estimated as
follows: The Cleveland system had about 150,000 students at the beginning of
this episode, and about 70,000 near the end. I took the average, over the
20-year period, as around 100,000. Some students fail to complete twelve years.
The average student probably spent about ten years in the system. So, in twenty
years, about 200,000 students must have passed through the
The
quarter billion hour estimate for time spent on buses was obtained as follows:
Assume about half the students each year rode buses to and from school. That’s
about 50,000 kids riding buses on any given school day. If they wasted, on
average, one-and-one-half hours per day, 160 days per year, for twenty years,
the result computes to 0.24 billion wasted hours.
NOTES FOR CHAPTER 18
1. The
2. Two minority opinions made this point. See
Graglia, pages 244 and 253.
3. Of course this was never explicitly stated.
The minority and majority opinions nitpicked a variety
of arcane legal points but never discussed the true motives of their authors.
That’s just not done. Even Lino Graglia, a law
professor who was very negative on forced busing, refrained from questioning
the justices’ forthrightness. It’s not politically correct to speculate about
the real motives for a judge’s decision.
4. I obtained most of my information on the
5. I took the $3 billion for half empty Taj Mahals quote from an article
in the Cleveland Plain Dealer, November 9, 1997, page 2-E. Chris Sheridan, the
writer, was quoting a ‘desegregation expert’ from Boston University.
6. The Machiavelli quote is from that work’s Chapter
XVI. According to my 1889 translation his exact words were, “to spend upon
another’s stock rather adds to than subtracts from (a Prince’s) reputation; it
is spending of his own that is so mortal and pernicious.”
7. The name of the case was Jenkins v.
NOTES FOR CHAPTER 19
1. James Loewen described 1992 polls which showed the attitudes of
white Americans toward Blacks getting worse. For the first time this century,
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younger Whites (under age 30) felt less racial
tolerance than their parents. See Loewen’s pages 163
and 338. Whites who were under 30 in 1992 attended public schools in the 1970's
and 1980's. That’s when bitterness over forced busing was most intense.
2. Information presented on the Jackie
Robinson story was all obtained from Allen. See especially pages, 44-75, 195,
196, and 205. You’ll have to take my word for the count of black Florida
Marlins. Or, if you prefer, call up the team’s management and request a check
of its records.
3. The story of Truman's order to integrate
the armed services was based on material in Bernstein and Matusow,
pages 95-114.
4. Moskos, Chapter
1, provided the statistics presented here concerning the success of Blacks in
the armed forces.
5. Information on Colin Powell's career was
obtained mainly from his autobiography (See the Bibliography).
6. National statistics on school
desegregation were obtained mainly from Welch. Welch's study analyzed 109 of
the largest public school districts affected by these programs. These 109
districts contained a little less than 20 percent of all public school
students. They contained a little less than 50 percent of the black students.
Information on total student enrollment was spread throughout Welch’s book. I
found parts of the story on pages 9, 11, 14, and 53. Adding it all up I
concluded that, on average, our public schools had about thirty-five million
white students and about ten million minority students during the years in
question.
NOTES FOR CHAPTER 20
1. The trend in state court “school funding
equity” rulings has been discussed in many newspaper articles. A few examples
are listed below.
●
a May 28, 1997 article in The New York Times. That
article, written by Peter Passell, is entitled, “New
Jersey Must Pay Up, a Court Rules. But Will It Matter?”
●
a January 23 article, in the Philadelphia Inquirer,
written by Tom Avril.
●
a dissent, by Justice Garibaldi in the
●
“Haves in Revolt Against ‘Have Nots’
in
2. Encarta 98 CD ROM Encyclopedia.
3. The six dictionaries I consulted are
listed below. The first five all emphasized minimum cost and/or waste.
-
Webster’s Dictionary of American English, Edited by
Gerard M. Dalgish, Ph.D,
Random House, 1997.
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- The
Concise American Heritage Dictionary, Revised Edition, Houghton Mifflin, 1987.
-
Webster’s New World Dictionary of American English, Third College Edition, Victoria
Neufeldt, Editor-in-Chief, Webster’s New World, 1988.
- The
- The
- The
4. According to the
According to a 1993
federal report, more than 40 million American adults (around 20 percent) then
lacked basic reading, writing, and math skills (See “Companies Teaching Basic
Skills,” an Associated Press article which appeared in the Cleveland Plain
Dealer, April 18, 1999, page 3-H).
Admittedly, between
1840 and 1993, the criteria for assessing basic literacy had changed. However,
it’s not at all clear whether they became more or less stringent. While school
cost went up at least 35 fold, it seems that performance at best stagnated.
5. See, for example, “The World’s Least
Efficient Schools,” Wall Street Journal, June 22, 1998, page A22. Chester E.
Finn Jr. and Herbert J. Walberg were the authors.
6. The data on state-by-state public school
cost and performance came from American Legislative Exchange Council (ALEC),
“Report Card on American Education, 1994.” I found a summary of the report in a
1996 Heritage Foundation paper, “Issues ‘96: The Candidate’s Briefing Book,” by
Denis P. Doyle.
For purposes of its
studies, ALEC treats the
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Let’s look at SAT
scores to get a picture of what taxpayers in those states got for their money.
I know that SAT scores don’t tell the whole story about school results. But
they do provide an objective measure of how well each school taught its
students.
The top five spending
states had SAT rankings that averaged 38 out of 51. The 5 states with the
lowest per-pupil spending had SAT rankings that averaged 14 out of 51. They weren’t
the best 5, but they did a lot better than the 5 states
whose taxpayers took the biggest hit.
7. See Hanushek,
1994, Figures 3.1 and 3.4.
8. See Shokraii,
Nina A. “Why Catholic Schools Spell Success For
America’s Inner-City Children,” The Heritage Foundation, Roe Backgrounder No.
1128, June 30, 1997. Ms. Shokraii’s report cited 1990
data comparing public and Catholic high schools in distressed parts of
The gap between the
performance of the public schools and that of the Catholic schools was
dramatic. Each year the Catholic high schools in the sample graduated about 95%
of their students. The public schools graduated about half, the rest dropping
out.
Only one-third of the
public school graduates thought they had learned enough to bother taking the
SAT test. That’s one-sixth of those the public schools spent six or seven
thousand dollars per-year to educate. That one-sixth received an average SAT
score of 642. About 85% of the Catholic school graduates took the SAT test,
receiving an average score of 803.
NOTES FOR CHAPTER 21
1. This episode is described in Cray, pages
100-102.
2. Cray, Page 463.
3. Levinson 1994, pages 157-8.
4. Cray, Page 375, footnote.
5. I found the story about the body in a
speeding van in a column by Dick Feigler in the
Cleveland Plain Dealer, June 17, 1996, page 2A.
6. See a June 6, 1999 Washington Post article
by E. R. Schipps which quotes Justice Rehnquist’s
opinion in Wilson v. Layne, 1999.
7. Cray, page 457-61.
8. The Miranda ruling is also discussed in
Pollack, pages 267-268.
9. Cray, page 459.
10. Cray, page 461, footnote.
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11. See “Court Right to Challenge Miranda,”
by Paul D. Kamenar,
12. Cray, page 461-2.
NOTES FOR CHAPTER 22
1. “Rights of Crime Victims,”
2. Crime rate data between 1960 and 1970 were
taken from The American Almanac, 1973, page 143. Data for later years,
through 1994, are from The Universal Almanac, 1997, pages 285-288. The
recent dip in crime rates was described in an article in the Cleveland Plain
Dealer, April 14, 1997, page 5A.
3. Data on conviction rates can be found in The
American Almanac, 1997, page 288.
4. The admission of judicial blame for higher
crime rates was in Posner, 1996, page 386.
5. Publication data on MacKinnon’s book is
given in the Bibliography.
6. See “TV Violence Stalks Streets of
7. Earl Warren’s lecture to the police is
quoted in Pollack, pages 267-8.
8. Data on the drop in crime solution rates,
during the 1960s, was taken from The New York Times Encyclopedic Almanac,
1971, page 275.
9. The data on how many crimes are avoided by
keeping crooks in jail were taken from Levitt, mainly
pages 2 and 23.
10. See the first half of Lazarus, Closed
Chambers.
11. See “Miranda Rule Challenged,” by Tom Jackman, Washington Post, Page A01, Feb. 10, 1999, and
“Overturning Miranda,” Washing Post, Page A26, Feb. 13, 1999. See also “Miranda
Mischief,” a New York Times editorial, Feb. 15, 1999. The USA Today editorial
appeared in the Feb. 17, 1999 issue.
12. The opinion “overturning Miranda” was in U.
S. v. Dickerson.
13. The rising prison population was
described in The Cleveland Plain Dealer, January 19, 1998, page 8-A and a Wall
Street Journal article, “And Now for the Bad News,” by Charles Murray, Feb. 2,
1999, page A22.
14. See the Wall Street Journal article cited
just above.
15. Statistics concerning the number of
policemen killed in the line of duty were found at the world-wide-web home page
of an organization named Concerns of Police Survivors, Inc. (Or COPS). I
neglected to record the web address. However, their e-mail address was
cops@nationalcops.org.
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NOTES FOR CHAPTER 23
1. The story about the judges taking over
prisons in twelve states was based mainly on information in Levitt,
page 6.
2. Fortune, Keeping Up, by Daniel Seligman,
Oct. 30, 1995. Incidently, courts may not deserve all
the blame for the frivolous lawsuits described in the next few paragraphs. I
believe legislation was partly to blame for tax dollars encouraging this
practice.
3. A Wall Street Journal Editorial, June 10,
1996.
4. The right of jailed sexual predators to
have dirty pictures in their cells was described in the Wall Street Journal,
July 22, 1998, page A14. Dennis Saffran wrote the
article.
5. Cleveland Plain Dealer, April 3, 1996, an
Associated Press release.
6. The death row riot in
7. Cleveland Plain Dealer, April 8, 1996.
8. Cleveland Plain Dealer, April 13, 1996. page 12A. The article was written by Joe Hallinan
of Newhouse News Service.
9. Cleveland Plain Dealer, August 10, 1996,
10. “Judge Rules to Keep Restraints on
Prisons,” by Rick Lyman,
11. “Anatomy of a Prison-Based Gang." by
Maro Robbins, San Antonio Express News, Feb. 28,
1999, page 3B.
NOTES FOR CHAPTER 24
1. Statistics on executions can be found in
Epstein et. al., page 619 and Woodward, page 244. The
one in 1000 figure came from an opinion piece by John J. DiIulio
in the Wall Street Journal, December 15, 1997, page A23.
2. Statistics on innocent men sentenced to death
are from “the Wrong Men on Death Row,” by Joseph P. Shapiro. It appeared in the
November 9, 1998 issue of U. S. News and World Report.
3. Recall that about 20,000 Americans were
murdered in an average year over most of that 25-year time frame.
4. The 1958 “evolving standards” opinion was
in Trop v. Dulles. The case did not involve the death penalty. See
Woodward, page 245 or Lazarus, page 87.
5. My story of the habeas corpus scam was
based mainly on information in Woodward, pages 241-260. Lazarus has several
chapters describing pretty much the same story.
6. Table 8-6 in
Epstein shows the results of four different polls, on the issue of the death
penalty, at various times between 1936 and 1991. All four polls show
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a generally rising trend in public approval of capital
punishment over all or most of that fifty-five-year period. That trend
continued at least until early 1998. Polls then showed three fourths of the
public wanting the death penalty available for at least some cases. See the
article by Mark Tatke, Cleveland Plain Dealer,
February 22, 1998, page 1-A.
7. The Machiavelli quote came from page 114
(Chapter XIX) in my 1889 English language version of The Prince.
8. The Supreme Court dealt with the new
capital punishment laws in Gregg v. Georgia. See Woodward, pages
512-525.
NOTES FOR CHAPTER 25
1. I took Byron White's observations from McKeever, pages 56-7.
2. Glendon, 1987,
cited six prominent legal scholars who criticized Roe v. Wade. See her
pages 44, 171, and 172. McKeever's Chapter 4 also
contains an account of the adverse reaction of legal scholars to the opinion.
3. A description of the Supreme Court clerks'
reaction to "Harry's Abortion" can be found in Woodward, page 276.
4. See, for example, Luker.
See also Tribe, pp 28, 29.
5. See Berger, pages 134-5, for a discussion
of the fact that our founders intended the Bill of Rights to apply only to the
federal government.
6. All of the data I included on anti
abortion legislation around 1868 was obtained from Mohr, pages 195-225.
7. See Mckeever,
Chapter 4, for a discussion of Griswold v. Connecticut. One can also
read the whole opinion at a web site operated by the
8. See, for example, the Oxford English
Dictionary, Second Edition, Volume V, page 154 and Volume XI, page 502. The
dictionary is listed in the Bibliography under the names of its editors, J. A.
Simpson and E. S. C. Weiner. See also Funk & Wagnalls
Standard Reference Encyclopedia. The edition I consulted was published in 1969.
It’s essentially the same as several earlier editions published throughout the
1960's. So it’s contemporaneous with the opinions based on “penumbras and
emanations.” It’s listed in the bibliography under the name of Joseph Laffen Morse, its Editor-in-Chief.
9. From Justice Taney’s
majority opinion in Scott v. Sandford. The
Swisher, Chapters 23 and 24,
described the pro slavery bias of the Dred Scott
majority.
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10. In 1973, large majorities approved of
abortions to remove serious risks to a woman's health. Only 27 percent approved
of "elective" abortions (See McKeever,
pages 83, 92).
11. According to Tribe (page 49), nineteen
States liberalized their abortion laws, between 1967 and 1973, to conform to
public views on the issue.
12. See Glendon,
1987, Chapter 1, for a discussion comparing abortion policies in other
countries to those in the
13. Machiavelli’s exact words, as they appear
on page 134 (Chapter XX) of my 1889 English language version, are: “ . . .many have thought that a wise prince, when
opportunity offers, ought, but with great cunning and address, to maintain some
enmity against himself, that when time serves to destroy them, his own
greatness may be increased.”
NOTES FOR CHAPTER 26
1. See the book by Touhy
and Warden if you’d like to read about some real
2. The one-in three
estimate is on page 34 of Tribe’s
book.
3. Tribe’s page 35 contains the statement
that most of those abortions were illegal. That same page says that those in
higher economic classes had most of the abortions and that the abortion laws
were rarely enforced. Bork, 1996, page 173 makes roughly the same points.
NOTES FOR CHAPTER 27
1. You can find discussions of the "Planned
Parenthood v. Casey” ruling in McKeever, pages
115-16, Levinson, 1994, page 168, and Lazarus, pages 459-86. A transcript of
the opinion can be found at the historic opinion web page operated by
2. See
3. The two Supreme Court assisted suicide
rulings were in Vacco v. Quill and Washington
v. Glucksburg. You can find the complete Washington
v. Glucksburg opinion at the web site operated by
4. Both Machiavelli quotes are from that
work’s Chapter III, the first on page 28 and the second on page 21.
5. See this book’s Chapter 10.
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NOTES FOR CHAPTER 28
1. The Business of Persuasion Thrives in
Nation's Capital, by Jill Abramson, New York Times, September 29, 1998.
2. See, for example, Webster's Ninth New
Collegiate Dictionary. I paraphrased what I found there.
3. The number of admitted federal lobbyists,
in 1997, was 14,484. I found that information, along with the $1.17 billion
figure, in The Oregonian, July 8, 1998, page A8. The article was written by
Jonathan D. Salant of the AP.
4. The judicial salary numbers were taken
from the Federal Employees Almanac, 1995.
5. Keep in mind, I
didn't say that federal judges never take a bribe. I said almost never.
6. As far as I know Maslow’s
comprehensive theory on a hierarchy of human needs first appears in his 1943
paper, “Theory of Human Motivation,” Psychological Review, 1943, Vol. 50, pp
370-396.
NOTES FOR CHAPTER 29
1. Changes to the rules of civil procedure to
encourage more class action cases are mentioned in McKeever,
page 14.
2. Numbers on the law student population in
the 1960's came from Glendon, 1994, Chapter 10. My
description of trends in law school acceptance criteria is also based on
material found in Glendon’s book.
3. Material in this section drew heavily on McKeever's Chapters Two and Four. Of course, you should not
blame McKeever for the way that material was
interpreted here.
NOTES FOR CHAPTER 30
1. The quote is from
2. Material in this section drew heavily on McKeever's Chapter Two. However, he is not to blame for the
way I defined words I learned from his book.
3. The number of law professors was taken
from Glendon, 1994, Chapter 10.
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NOTES FOR CHAPTER 31
1. Mike Royko's
column (Cleveland Plain Dealer, Aug. 29, 1996) featured an entertaining
anecdote along these lines.
2. Machiavelli, Chapter XIII, page 61.
3. Machiavelli, Chapter XIX, page 119.
NOTES FOR CHAPTER 32
1. The living Constitution quote is from McKeever, page 44. McKeever
quoted a legal scholar named David A. Richards.
2. I shortened the Thomas Jefferson quote a
bit. A longer version can be found in Konefsky, page
160. It was from Jefferson’s June 1816 letter to Gov. William Plumer of
@lit(mcc/078)).
3. The "desirable policy results " story line was taken from McKeever,
pages 41-2. I’ve forgotten to whom he attributed the argument.
4. Voter participation statistics were taken
from USA Today, November 7, 1996, page 3A, and Nov. 8, 1996, page 4A. Both
articles were written by Bob Minzesheimer. The off
year voter participation rates came from an article written by Ohio Secretary
of State Bob Taft, in the Cleveland Plain Dealer, May 4, 1996.
5. Professor Arend Lijphart proposed, in the Chronicle of Higher Education,
that we punish non-voters. The Chronicle published his piece on October 18,
1996, page B3. About six weeks later another professor, named Libby Rittenberg, took issue with Professor Lijphart’s
suggestion. Her letter to the editor of the same publication appeared in the
Nov. 29, 1996 issue, also page B3.
6. One can find a cursory description of the
theory of rational expectations in Attfield, 1985.
7. The common-law-court problem was described
in the Cleveland Plain Dealer, Dec. 11, 1995, page 8-A, and Aug. 27, 1996, page
12-A. See also "Justices form panel on extremists,"
by Mark Rollenhagen, Cleveland Plain Dealer, July 29,
1997, page 4-B.
8. See “Nation’s jurors ignore evidence,
become civil activists,” by Joan Biskupic, Washington
Post columnist. I read Joan’s article in the Cleveland Plain Dealer, February
21, 1999, page 21-A.
9. Government
by Judiciary is the title of Raoul Berger's 1977
book describing many judicial scams built on creative misreading of the
Fourteenth
215
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Amendment. It’s also the title of an excellent 1932
two volume set by Louis Boudin.
NOTES FOR CHAPTER 33
1. See Schwartz, 1988, page 34.
2. The
3. You can read about the four Supreme Court
votes for socialism in, for example, Levinson, 1988, pages 179-81. As I recall,
the issue wasn’t framed around the term “socialism,” it was framed around the
question of whether or not the government had a constitutional mandate to force
the taxpayers to meet everyone’s basic needs. Four justices voted that it did.
Basic needs, of course, would evolve with time. It would be up to the judges of
each era to define them.
4. This Machiavelli lesson is in his Chapter
XVIII, entitled “How far a Prince is obliged by his Promiise.”
5. See, for example, Konefsky,
page 243.
6. See Sandel, page
24.
7. See, for example, poll data in The Wall
Street Journal, August 24, 1998, page A14. “In Middle America Stability
Outweighs Impeachment,” The piece was written by Dennis Farney.
NOTES FOR ILLUSTRATIONS
Note
FDR: The quote is from FDR’s radio Fireside Chat, March 9, 1937. The photo of
FDR used several times in this book was downloaded from The Franklin D.
Roosevelt Library and Digital Archives. The Archive contains thousands of
on-line copyright free photographs. Its web address is
http://www.fdrlibrary.marist.edu/fdrphoto.html
Note P014: Fireside Chat, March 9, 1937.
Note P076: Fireside Chat, March 9, 1937.
Note
P122: Abe Lincoln speaking on the Dred Scott decision
at
Note
P142: The quote is from
Note P154: The quote is from
216
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Note
P158: The quote is from the message accompanying
The entire quote was
as follows: “Mere precedent is a dangerous source of authority, and should not
be regarded as deciding questions of constitutional power except where the
acquiescence of the people and the states can be considered as well settled.” See,
for example, Brown page 40.
Note P164: The quote is from
Note P184: See, for example, Platt, page 251.
Note
P190: I found this
Note P218: This also is from the Fireside
Chat, March 9, 1937.
Note P238: From
217
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218
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APPENDIX
THE
CONSTITUTION OF THE
We
the People of the United States, in Order to form a more perfect Union,
establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the
Blessings of Liberty to ourselves and our Posterity, do ordain and establish
this Constitution for the United States of America.
ARTICLE I
Section 1. All legislative Powers herein granted shall be
vested in a Congress of the
Section 2. The House of Representatives shall be composed of
Members chosen every second Year by the People of the several States, and the
Electors in each State shall have the Qualifications requisite for Electors of
the most numerous Branch of the State Legislature.
No
Person shall be a Representative who shall not have attained to the Age of
twenty five Years, and been seven Years a Citizen of the
Representatives
and direct Taxes shall be apportioned among the several States which may be
included within this
When
vacancies happen in the Representation from any state, the
219
....................................................................................................................
Executive Authority thereof shall issue Writs of Election to fill such
Vacancies.
The
House of Representatives shall chuse their Speaker
and other Officers; and shall have the sole Power of Impeachment.
Section 3. The Senate of the
Immediately
after they shall be assembled in Consequence of the first Election, they shall
be divided as equally as may be into three Classes. The Seats of the Senators
of the first Class shall be vacated at the Expiration of the second Year, of
the second Class at the Expiration of the fourth Year, and of the third Class
at the Expiration of the sixth Year, so that one third may be chosen every
second Year; and if Vacancies happen by Resignation, or otherwise, during the
Recess of the Legislature of any State, the executive thereof may make
temporary Appointments until the next Meeting of the Legislature, which shall
then fill such Vacancies.
No
Person shall be a Senator who shall not have attained to the Age of thirty
Years, and been nine Years a Citizen of the
The
Senate shall chuse their other Officers, and also a
President pro tempore, in the Absence of the Vice President, or when he shall
exercise the Office of President of the
The
Senate shall have the sole Power to try all Impeachments. When sitting for that
Purpose, they shall be on Oath or Affirmation. When the President of the
Judgement in Cases of Impeachment shall not extend further
than to removal from Office, and disqualification to hold and enjoy any Office
of honor, Trust or Profit under the
Section 4. The Times, Places and Manner of holding Elections
for Senators and Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law make or alter such
Regulations, except as to the Places of chusing
Senators.
The
Congress shall assemble at least once in every Year, and such Meeting shall be
on the first Monday in December, unless they shall by Law appoint a different
Day.
Section 5. Each House shall be the Judge of the Elections,
Returns and Qualifications of its own Members, and a Majority of each shall
constitute a
220
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Quorum to do Business; but a smaller Number may adjourn from day to day, and
may be authorized to compel the Attendance of Absent Members, in such Manner,
and under such Penalties as each House may provide.
Each
House may determine the Rules of its Proceedings, punish its Members for
disorderly Behaviour, and, with the Concurrence of
two thirds, expel a Member.
Each
House shall keep a Journal of its Proceedings, and from time to time publish
the same, excepting such Parts as may in their
Judgment require Secrecy; and the Yeas and Nays of the Members of either House
on any question shall, at the Desire of one fifth of those Present, be entered
on the Journal.
Neither
House, during the Session of Congress, shall, without the Consent of the other,
adjourn for more than three days, nor to any other Place than that in which the
two Houses shall be sitting.
Section 6. The Senators and Representatives shall receive a
Compensation for their Services, to be ascertained by Law, and paid out of the
Treasury of the
No
Senator or Representative shall, during the Time for which he was elected, be
appointed to any civil Office under the Authority of the United States, which
shall have been created, or the Emoluments whereof shall have been increased
during such time; and no Person holding any Office under the United States,
shall be a Member of either House during his Continuance in Office.
Section 7. All Bills for raising Revenue shall originate in
the House of Representatives; but the Senate may propose or concur with
amendments as on other Bills.
Every
Bill which shall have passed the House of Representatives and the Senate,
shall, before it become a Law, be presented to the President of the United
States; If he approve he shall sign it, but if not he shall return it, with his
Objections to that House in which it shall have originated, who shall enter the
Objections at large on their Journal, and proceed to reconsider it. If after
such Reconsideration two thirds of that House shall agree to pass the Bill, it
shall be sent, together with the Objections, to the other House, by which it
shall likewise be reconsidered, and if approved by two thirds of that House, it
shall become a Law. But in all such Cases the Votes of both Houses shall be
determined by yeas and Nays, and the Names of the Persons voting for and
against the Bill shall be entered on the Journal of each House respectively. If
any Bill shall not be returned by the President within ten Days (Sundays
221
....................................................................................................................
excepted) after it shall have been presented to him, the Same shall be a Law,
in like Manner as if he had signed it, unless the Congress by their Adjournment
prevent its Return, in which Case it shall not be a Law.
Every
Order, Resolution, or Vote to which the Concurrence of the Senate and House of
Representatives may be necessary (except on a question of Adjournment) shall be
presented to the President of the United States; and before the Same shall take
Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of
Representatives, according to the Rules and Limitations prescribed in the Case
of a Bill.
Section 8. The Congress shall have Power To
lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and
provide for the common Defence and general Welfare of
the
To
borrow Money on the credit of the
To
regulate Commerce with foreign Nations, and among the several states, and with
the Indian Tribes;
To
establish an uniform Rule of Naturalization, and uniform Laws on the subject of
Bankruptcies throughout the
To
coin Money, regulate the Value thereof, and of foreign Coin, and fix the
Standard of Weights and Measures;
To
provide for the Punishment of counterfeiting the Securities and current Coin of
the
To
establish Post Offices and post Roads;
To
promote the Progress of Science and useful Arts, by securing for limited Times
to Authors and Inventors the exclusive Right to their respective Writings and
Discoveries;
To
constitute Tribunals inferior to the supreme Court;
To
define and punish Piracies and Felonies committed on the high Seas, and
Offenses against the Law of Nations;
To
declare War, grant Letters of Marque and Reprisal,
and make Rules concerning Captures on Land and Water;
To
raise and support Armies, but no appropriation of Money to that Use shall be
for a longer Term than two Years;
To
provide and maintain a Navy;
To
make Rules for the Government and Regulation of the land and naval Forces;
To
provide for calling forth the Militia to execute the Laws of the
To
provide for organizing, arming, and disciplining, the Militia, and for
governing such Part of them as may be employed in the Service of the United
States, reserving to the States respectively, the Appointment of the Officers,
222
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and the Authority of training the Militia according to
the discipline prescribed by Congress;
To
exercise exclusive Legislation in all Cases whatsoever, over such District (not
exceeding ten Miles square) as may, by Cession of particular States, and the
Acceptance of Congress, become the Seat of the Government of the United States,
and to exercise like Authority over all Places purchased by the Consent of the
Legislature of the State in which the Same shall be, for the Erection of Forts,
Magazines, Arsenals, dock-Yards, and other needful Buildings;-
And
To
make all Laws which shall be necessary and proper for carrying into Execution
the foregoing Powers, and all other Powers vested by this Constitution in the
Government of the United States, or in any Department or Officer thereof.
Section 9. The Migration or Importation of such Persons as
any of the States now existing shall think proper to admit, shall not be
prohibited by the Congress prior to the Year one thousand eight hundred and
eight, but a Tax or duty may be imposed on such Importation, not exceeding ten
dollars for each Person.
The
Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may require it.
No
Bill of Attainder or ex post facto Law shall be passed.
No
Capitation, or other direct, Tax shall be laid, unless in Proportion to the
Census or Enumeration herein before directed to be taken.
No
Tax or Duty shall be laid on Articles exported from any State.
No
Preference shall be given by any Regulation of Commerce or Revenue to the Ports
of one State over those of another: nor shall Vessels bound to, or from, one
State, be obliged to enter, clear, or pay Duties in another.
No
Money shall be drawn from the Treasury, but in Consequence of Appropriations
made by Law; and a regular Statement and Account of the Receipts and
Expenditures of all public Money shall be published from time to time.
No
Title of Nobility shall be granted by the
Section 10. No State shall enter into any Treaty, Alliance,
or Confederation; grant Letters of Marque and
Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver
Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto
Law, or Law impairing the Obligation of Contracts, or grant any Title of
Nobility.
No
State shall, without the Consent of the Congress, lay any Imposts or Duties on
Imports or Exports, except what may be absolutely necessary for
223
....................................................................................................................
executing its inspection Laws: and the net Produce of all Duties and Imposts,
laid by any State on Imports or Exports, shall be for the Use of the Treasury
of the United States; and all such Laws shall be subject to the Revision and
Control of the Congress.
No
State shall, without the Consent of Congress, lay any Duty or Tonnage, keep
Troops, or Ships of War in time of Peace, enter into any Agreement or Compact
with another State, or with a foreign Power, or engage in War, unless actually
invaded, or in such imminent Danger as will not admit of delay.
ARTICLE II
Section 1. The executive Power shall be vested in a
President of the
Each
State shall appoint, in such Manner as the Legislature thereof may direct, a
Number of Electors, equal to the whole Number of Senators and Representatives
to which the State may be entitled in the Congress: but no Senator or
Representative, or Person holding an Office of Trust or Profit under the
The
Electors shall meet in their respective States, and vote by Ballot for two
Persons, of whom one at least shall not be an Inhabitant of the same State with
themselves. And they shall make a List of all the
Persons voted for, and of the Number of Votes for each; which List they shall
sign and certify, and transmit sealed to the Seat of the Government of the
224
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from them by Ballot the Vice President.
The
Congress may determine the Time of chusing the
Electors, and the Day on which they shall give their votes; which Day shall be
the same throughout the
No
Person except a Natural born Citizen, or a Citizen of the United States, at the
time of the Adoption of this Constitution, shall be eligible to the Office of
President; neither shall any person be eligible to that Office who shall not
have attained to the Age of thirty five Years, and been fourteen Years a
Resident within the United States.
In
Case of the Removal of the President from Office, or of his Death, Resignation,
or Inability to discharge the Powers and Duties of the said Office, the Same
shall devolve on the Vice President, and the Congress may by Law provide for
the Case of Removal, Death, Resignation, or Inability, both of the President
and Vice President, declaring what Officer shall then act as President, and
such Officer shall act accordingly, until the Disability be removed, or a
President shall be elected.
The
President shall, at stated Times, receive for his Services, a Compensation,
which shall neither be increased nor diminished during the Period for which he
shall have been elected, and he shall not receive within that Period any other
Emolument from the
Before
he enter on the Execution of his Office, he shall take the following Oath or
Affirmation:-"I do solemnly swear (or affirm) that I will faithfully
execute the Office of President of the United States, and will to the best of
my Ability, preserve, protect, and defend the Constitution of the United
States."
Section 2. The President shall be Commander in Chief of the
Army and Navy of the United States, and of the Militia of the several States,
when called into the actual Service of the United States; he may require the
Opinion, in writing, of the principal Officer in each of the executive
Departments, upon any Subject relating to the Duties of their respective
Offices, and he shall have Power to grant Reprieves and Pardons for Offenses
against the United States, except in Cases of Impeachment.
He
shall have Power, by and with the Advice and Consent of the Senate, to make
Treaties, provided two thirds of the Senators present concur; and he shall
nominate, and by and with the Advice and Consent of the Senate, shall appoint
Ambassadors, other public Ministers and Consuls, Judges of the supreme Court,
and all other Officers of the United States, whose Appointments are not herein
otherwise provided for, and which shall be established by Law: but the Congress
may by Law vest the Appointment of such inferior Officers, as they think
proper, in the President alone, in the Courts of Law, or in the Heads of
Departments.
The
President shall have Power to fill up all Vacancies that may happen during the
Recess of the Senate, by granting Commissions which shall expire at
225
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the End of their next Session.
He
shall from time to time give to the Congress Information of the State of the
Union, and recommend to their Consideration such Measures as he shall judge
necessary and expedient; he may, on extraordinary Occasions, conconvene both Houses, or either of them, and in Case of
Disagreement between them, with Respect to the Time of Adjournment, he may
adjourn them to such Time as he shall think proper; he shall receive
Ambassadors and other public Ministers; he shall take Care that the Laws be
faithfully executed, and shall Commission all the Officers of the United
States.
Section 4. The President, Vice President and all Civil
Officers of the
ARTICLE III
Section 1. The judicial Power of the
Section 2. The judicial Power shall extend to all Cases, in
Law and Equity, arising under this Constitution, the Laws of the United States,
and Treaties made, or which shall be made, under their Authority;- to all Cases
affecting Ambassadors, other public Ministers and Consuls;- to all Cases of
admiralty and maritime Jurisdiction;- to Controversies to which the United
States shall be a Party;- to Controversies between two or more States;- between
a State and Citizens of another State;- between Citizens of different States;-
between Citizens of the same State claiming Lands under Grants of different
States, and between a State, or the Citizens thereof, and foreign States,
Citizens or Subjects.
In
all Cases affecting Ambassadors, other public Ministers and Consuls, and those
in which a State shall be Party, the Supreme Court shall have original
Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall
have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and
under such Regulations, as the Congress shall make.
The
Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such
Trial shall be held in the State where the said Crimes shall have been
committed; but when not committed within any State, the Trial shall be at such
Place or Places as the Congress may by Law have directed.
Section 3. Treason against the
226
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War against them, or in adhering to their Enemies, giving them Aid and Comfort.
No Person shall be convicted of Treason unless on the Testimony of two
Witnesses to the same overt Act, or on Confession in open Court.
The
Congress shall have Power to declare the Punishment of Treason, but no
Attainder of Treason shall work Corruption of Blood, or Forfeiture except
during the Life of the Person attainted.
ARTICLE IV
Section 1. Full Faith and Credit shall be given in each
State to the public Acts, Records, and judicial Proceedings of every other
State; And the Congress may by general Laws prescribe the Manner in which such
Acts, Records and Proceedings shall be proved, and the Effect thereof.
Section 2. The Citizens of each State shall be entitled to
all Privileges and Immunities of Citizens in the several States.
A
Person charged in any State with Treason, Felony, or other Crime, who shall
flee from Justice, and be found in another State, shall on Demand of the
executive Authority of the State from which he fled, be delivered up, to be
removed to the State having Jurisdiction of the Crime.
No
Person held to Service or Labour in one State, under
the Laws thereof, escaping into another, shall, in Consequence of any Law or
Regulation therein, be discharged from such Service or Labour,
but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
Section 3. New States may be admitted by the Congress into
this Union; but no new State shall be formed or erected within the Jurisdiction
of any other State; nor any State be formed by the Junction of two or more
States, or Parts of States, without the Consent of the Legislatures of the
States concerned as well as of the Congress.
The
Congress shall have Power to dispose of and make all needful Rules and
Regulations respecting the Territory or other Property belonging to the
Section 4. The
ARTICLE V
The
Congress, whenever two thirds of both Houses shall deem it necessary, shall
propose Amendments to this Constitution, or, on the
227
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Application of the Legislatures of two thirds of the several States, shall call
a Convention for proposing Amendments, which, in either Case, shall be valid to
all Intents and Purposes, as Part of this Constitution, when ratified by the
Legislatures of three fourths of the several States, or by Conventions in three
fourths thereof, as the one or the other Mode of Ratification may be proposed
by the Congress; Provided that no Amendment which may be made prior to the Year
One thousand eight hundred and eight shall in any Manner affect the first and
fourth Clauses in the Ninth Section of the first Article; and that no State,
without its Consent, shall be deprived of its equal Suffrage in the Senate.
ARTICLE VI
All
Debts contracted and Engagements entered into, before the Adoption of this
Constitution, shall be as valid against the
This
Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.
The
Senators and Representatives before mentioned, and the Members of the several
State Legislatures, and all executive and judicial Officers, both of the United
States and of the several States, shall be bound by Oath or Affirmation, to
support this Constitution; but no religious Test shall ever be required as a
Qualification to any Office or public Trust under the United States.
ARTICLE VII
The
Ratification of the Conventions of nine States, shall
be sufficient for the Establishment of this Constitution between the States so
ratifying the Same.
* * *
228
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AMENDMENTS OF
THE CONSTITUTION OF THE
Amendment I [1791]
Congress
shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press, or
the right of the people peaceably to assemble, and to petition the Government
for a redress of grievances.
Amendment II [1791]
A
well regulated Militia, being necessary to the security of a
Amendment III [1791]
No
Soldier shall, in time of peace be quartered in any house, without the consent
of the Owner, nor in time of war, but in a manner to be prescribed by law.
Amendment IV [1791]
The
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
Amendment V [1791]
No
person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in cases
229
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arising in the land or naval forces, or in the Militia, when in actual service
in time of War or public danger; nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb, nor shall be compelled in
any criminal case to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall private property be
taken for public use without just compensation.
Amendment VI [1791]
In
all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime
shall have been committed; which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the assistance of
counsel for his defence.
Amendment VII [1791]
In
Suits at common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved, and no fact tried by a
jury shall be otherwise re-examined in any Court of the
Amendment VIII [1791]
Excessive
bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
Amendment IX [1791]
The
enumeration in the Constitution of certain rights shall not be construed to
deny or disparage others retained by the people.
Amendment X [1791]
230
....................................................................................................................
The
powers not delegated to the
Amendment XI [1795]
The
Judicial power of the
Amendment XII [1804]
The
Electors shall meet in their respective states and vote by ballot for President
and Vice President, one of whom, at least, shall not be an inhabitant of the
same state with themselves; they shall name in their ballots the person voted
for as President, and in distinct ballots the person voted for as
Vice-President, and they shall make distinct lists of all persons voted for as
President, and of all persons voted for as Vice President, and of the number of
votes for each, which lists they shall sign and certify, and transmit sealed to
the seat of the government of the United States, directed to the President of
the Senate;- The President of the Senate shall, in the presence of the Senate
and House of Representatives, open all the certificates and the votes shall
then be counted;- The person having the greatest number of votes for President,
shall be the President, if such number be a majority of the whole number of
Electors appointed; and if no person have such majority, then from the persons
having the highest numbers not exceeding three on the list of those voted for
as President, the House of Representatives shall choose immediately, by ballot,
the President. But in choosing the President, the votes shall be taken by
states, the representation from each state having one vote; a quorum for this
purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary
to a choice. And if the House of Representatives shall not choose a President
whenever the right of choice shall devolve upon them, before the fourth day of
March next following, then the Vice-President shall act as President, as in the
case of death or other constitutional disability of the President- The person
having the greatest number of votes as Vice-President, shall be the
Vice-President, if such number be a majority of the whole number of Electors
appointed, and if no person have a majority, then from the two highest numbers
on the list, the Senate shall choose the Vice-President; a quorum for the
purpose shall consist of two-thirds
231
....................................................................................................................
of the whole number of Senators, and a majority of the
whole number shall be necessary to a choice. But no person constitutionally
ineligible to the office of President shall be eligible to that of
Vice-President of the
Amendment XIII [1865]
Section 1. Neither slavery nor involuntary servitude, except
as a punishment for crime whereof the party shall have been duly convicted,
shall exist within the
Section 2. Congress shall have power to enforce this article
by appropriate legislation.
Amendment XIV [1868]
Section 1. All persons born or naturalized in the
Section 2. Representatives shall be apportioned among the
several States according to their respective numbers ,
counting the whole number of persons in each State, excluding Indians not
taxed. But when the right to vote at any election for the choice of electors
for President or Vice President of the United States, Representatives in
Congress, the Executive and Judicial officers of a State, or the members of the
Legislature thereof, is denied to any of the male inhabitants of such State,
being twenty- one years of age, and citizens of the United States, or in any
way abridged, except for participation in rebellion, or other crime, the basis
of representation therein shall be reduced in the proportion which the number
of such male citizens shall bear to the whole number of male citizens
twenty-one years of age in such state.
Section 3. No person shall be a Senator or Representative in
Congress, or elector of President and Vice President, or hold any office, civil
or military, under the United States, or under any State, who, having
previously taken an oath, as a member of Congress, or as an officer of the
United States, or as a member of any State legislature, or as an executive or
judicial officer of any State, to support the Constitution of the United
States, shall have engaged in insurrection or rebellion against the same, or
given aid or comfort to the enemies thereof. But Congress may by a vote of
two-thirds of each House,
232
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remove such disability.
Section 4. The validity of the public debt of the
Section 5. The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.
Amendment XV [1870]
Section 1. The right of citizens of the
Section 2. The Congress shall have power to enforce this
article by appropriate legislation.
Amendment XVI [1913]
The
Congress shall have power to lay and collect taxes on incomes, from whatever
source derived, without apportionment among the several States, and without
regard to any census or enumeration.
Amendment XVII [1913]
The
Senate of the
When
vacancies happen in the representation of any State in the Senate, the
executive authority of such State shall issue writs of election to fill such
vacancies: Provided, That the legislature of
any State may empower the executive thereof to make temporary appointments
until the people fill the vacancies by election as the legislature may direct.
This
amendment shall not be so construed as to effect the election or term of any
Senator chosen before it becomes valid as part of the Constitution.
233
....................................................................................................................
Amendment XVIII [1919]
Section 1. After one year from the ratification of this
article the manufacture, sale, or transportation of intoxicating liquors
within, or importation thereof into, or the exportation thereof from the
Section 2. The Congress and the several States shall have
concurrent power to enforce this article by appropriate legislation.
Section 3. This article shall be inoperative unless it shall
have been ratified as an amendment to the Constitution by the legislatures of
the several States, as provided in the Constitution, within seven years from
the date of the submission hereof to the States by the Congress.
Amendment XIX [1920]
The
right of citizens of the
Congress
shall have power to enforce this article by appropriate legislation.
Amendment XX [1933]
Section 1. The terms of the President and Vice President
shall end at noon on the 20th day of January, and the terms of Senators and
Representatives at noon on the 3rd day of January, of the years in which such
terms would have ended if this article had not been ratified; and the terms of
their successors shall then begin.
Section 2. The Congress shall assemble at least once in
every year, and such meeting shall begin at noon on the 3rd day of January,
unless they shall by law appoint a different day.
Section 3. If, at the time fixed for the beginning of the
term of the President, the President elect shall have died, the Vice President
elect shall become President. If a President shall not have been chosen before
the time fixed for the beginning of his term, or if the President elect shall
have failed to qualify, then the Vice President elect shall act as President
until a President shall have qualified; and the Congress may by law provide for
the case wherein neither a President elect nor a Vice President elect shall
have qualified, declaring who shall then act as President, or the manner in
which one who is to act shall be selected, and such person shall act
accordingly until a President or
234
....................................................................................................................
Vice President shall have qualified.
Section 4. The Congress may by law provide for the case of
the death of any of the persons from whom the House of Representatives may
choose a President whenever the right of choice shall have devolved upon them,
and for the case of the death of any of the persons from whom the Senate may
choose a Vice President whenever the right of choice shall have devolved upon
them.
Section 5. Sections 1 and 2 shall take effect on the 15th
day of October following the ratification of this article.
Section 6. This article shall be inoperative unless it shall
have been ratified as an amendment to the Constitution by the legislatures of
three-fourths of the several States within seven years from the date of its
submission.
Amendment XXI [1933]
Section 1. The eighteenth article of amendment to the
Constitution of the
Section 2. The transportation or importation into any State,
Territory, or possession of the
Section 3. This article shall be inoperative unless it shall
have been ratified as an amendment to the Constitution by conventions in the
several States, as provided in the Constitution, within seven years from the
date of the submission hereof to the States by the Congress.
Amendment XXII [1951]
Section 1. No person shall be elected to the office of the
President more than twice, and no person who has held the office of President,
or acted as President, for more than two years of a term to which some other
person was elected President shall be elected to the office of the President
more than once. But this Article shall not apply to any person holding the
office of President when this Article was proposed by the Congress, and shall
not prevent any person who may be holding the office of President, or acting as
President, during the term within which this Article becomes operative from
holding the office of President or acting as President during the remainder of
such term.
Section 2. This article shall be inoperative unless it shall
have been ratified as an amendment to the Constitution by the legislatures of
three-fourths of the several States within seven years from the date of its
submission to the States by the Congress.
235
....................................................................................................................
Amendment XXIII [1961]
Section 1. The District constituting the seat of Government
of the
A
number of electors of President and Vice President equal to the whole number of
Senators and Representatives in Congress to which the District would be
entitled if it were a State, but in no event more than the least populous
State; they shall be in addition to those appointed by the States, but they
shall be considered, for the purposes of the election of President and Vice
President, to be electors appointed by a State; and they shall meet in the
District and perform such duties as provided by the twelfth article of
amendment.
Section 2. The Congress shall have the power to enforce this
article by appropriate legislation.
Amendment XXIV [1964]
Section 1. The right of citizens of the
Section 2. The Congress shall have power to enforce this
article by appropriate legislation.
Amendment XXV [1967]
Section 1. In case of the removal of the President from
office or of his death or resignation, the Vice President shall become
President.
Section 2. Whenever there is a vacancy in the office of the
Vice President, the President shall nominate a Vice President who shall take
office upon confirmation by a majority vote of both Houses of Congress.
Section 3. Whenever the President transmits to the President
pro tempore of the Senate and the Speaker of the House of Representatives his
written declaration that he is unable to discharge the powers and duties of his
office, and until he transmits to them a written declaration to the contrary,
such powers and duties shall be discharged by the Vice President as Acting
President.
Section 4. Whenever the Vice President and a majority of
either the principal officers of the executive departments or of such other
body as Congress may by law provide, transmit to the President pro tempore of
the
236
....................................................................................................................
Senate and the Speaker of the House of Representatives their written
declaration that the President is unable to discharge the powers and duties of
his office, the Vice President shall immediately assume the powers and duties
of the office as Acting President.
Thereafter,
when the President transmits to the President pro tempore of the Senate and the
Speaker of the House of Representatives his written declaration that no
inability exists, he shall resume the powers and duties of his office unless
the Vice President and a majority of either the principal officers of the
executive department or of such other body as Congress may by law provide,
transmit within four days to the President pro tempore of the Senate and the
Speaker of the House of Representatives their written declaration that the
President is unable to discharge the powers and duties of his office. Thereupon
Congress shall decide the issue, assembling within forty-eight hours for that
purpose if not in session. If the Congress, within twenty-one days after
receipt of the latter written declaration, or, if Congress is not in session,
within twenty-one days after Congress is required to assemble, determines by
two-thirds votes of both Houses that the President is unable to discharge the
powers and duties of his office, the Vice President shall continue to discharge
the same as Acting President; otherwise, the President shall resume the powers
and duties of his office.
Amendment XXVI [1971]
Section 1. The right of citizens of the United States, who
are eighteen years of age or older, to vote shall not be denied or abridged by
the United States or by any State on account of age.
Section 2. The Congress shall have power to enforce this
article by appropriate legislation.
Amendment XXVII [Proposed in 1789,
Ratified in 1992]
No
law, varying the compensation for the services of the senators and
representatives, shall take effect until an election of representatives shall
have intervened.
237
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238
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246
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INDEX
ACLU, 78-80, 187, 202
Acluism, 5, 69, 79-81, 83, 84, 86, 89, 90, 93, 143, 149, 156,
160, 161, 187
Adams, John, 16, 27, 202
Alcoholics Anonymous, 79
American Civil Liberties
Amicus curiae, 171, 172
Article V, 10, 12, 61, 185, 227
Berger, Raoul, 191,
192, 195-197, 199, 204, 212, 239
Bolling v. Sharpe, 98
Bork, Robert H., 80, 81, 173, 191, 194, 195,
202, 213, 239
Brown, Linda, 97, 99, 101, 102
Brown v.
Burger,
Chase, Samuel, 16, 36, 186, 194, 195
Civic religion, 72, 77, 78
Consent decree scam, 103, 104, 120
Continuous constitutional convention, 50, 51
Conveniently vague language, 46
Cray, Ed, 198, 199, 209, 210, 240
De Tocqueville, 240
Desirable policy results, 6, 179, 180, 215
Doe v.
Double jeopardy, 22-24
Douglas, William O., 83, 151
Dred Scott, 39-41, 44, 99, 152, 153, 180, 195, 212, 216,
241
Due process scam, 39, 41, 43, 46, 47, 49, 51,
55, 71, 77, 84, 99
Ebonics, 101, 205
Eighth Amendment, 18, 137, 144, 146, 147
Eleventh Amendment, 25, 31-34, 186, 194, 244
Equal Rights Amendment, 90
ERA, 5, 20, 29, 49, 55, 56, 89-93, 170, 204,
216, 243
Evolving standards of decency, 146
Fairman, Charles, 195, 196, 241
FDR, 77, 78, 186, 216
Federalist, 15, 16, 27, 35, 40, 66, 185, 192,
199, 217, 241
Fifth Amendment, 23, 40, 99, 127
First Amendment, 12, 15, 16, 19, 25, 31, 73,
75, 78, 79, 81, 84-86, 88, 93, 152, 201, 202
247
....................................................................
First great commandment of Acluism, 80, 84, 86, 149
First Great Prince of Usurpation, 27, 29, 32,
35, 63, 71
First Great Princess of Usurpation, 189
Flag burning, 25, 26, 193
Fletcher v. Peck, 33, 34, 194
Forced busing, 43, 102, 103, 106, 107, 109,
113, 116, 188, 206, 207
Fourteenth Amendment, 25, 43-48, 59, 60, 71,
72, 79, 87, 89-92, 97, 98, 100, 103, 150, 151, 160, 186, 194-196, 199, 202,
204, 216, 239
Fourth Amendment, 126, 127
Fundamental law, 78, 79, 86, 168, 179
Gay rights, 81
Gender equity, 43, 44, 89-91
George III, 27, 66
Ginsburg, Ruth Bader, 91
Glendon, Mary Ann, 191, 200, 212-214, 241, 245
Golden Rule, 81
Government by Judiciary, 204, 215, 239
Grand Inquisitor, 5, 93, 204
Great beast, 28, 173, 180, 185
Great Depression, 49-53, 77, 180, 186, 241
Griswold v.
Habeas corpus scam, 144-147, 211
Hamilton, Alexander, 27, 28, 40, 185, 191,
192, 195, 199, 239, 241, 242
Hammurabi, 15, 191
Hanushek, Eric, 208, 209, 241
Henry II, 21
Hobson, Charles, E., 193, 194, 199, 242
Hostage Theory, 5, 101, 102
Impeach or Impeachment, 35, 36, 177
Interpretivist, 174
Jackson, Andrew, 66
Jackson, Robert H., 51, 98
Japanese-Americans, 57, 97, 198
Jefferson, Thomas, 28, 35, 36, 66, 171, 173,
180, 182, 185, 187, 201, 215, 216, 239, 243, 245
King John, 29
Landmark decisions, 59, 64, 186
Lazarus, Edward, 26, 133, 193, 204, 210, 211,
213, 242
Levinson, Sanford G., 192, 194, 199, 200,
205, 209, 213, 216, 242, 243
Lincoln, Abe, 41, 44, 67, 195, 200, 202, 216,
217, 242, 243
Living Constitution, 11, 185, 215
248
....................................................................
Machiavelli, Niccolo,
26, 28, 35, 59, 73, 110, 146, 153, 160, 161, 169, 177, 179, 187, 193, 194, 206,
212, 213, 215, 216, 243
Madison, James, 35, 36, 66, 137, 199, 241
Mafia, 71, 88, 177
Magna Carta, 29
Mapp v.
Marbury v.
Marshall, John or Marshall Court, 27-30, 32,
33, 35, 36, 55, 63, 71, 77, 169, 193-195, 199, 200, 239, 242
Maslow, 167, 243
McCloskey, Robert G., 71, 193-195, 197, 200,
242, 243
McKeever, Robert J., 198, 202, 203, 212-215, 243
Millikan v. Bradley, 109
Miranda v.
Modern liberalism, 80, 239
Neuhaus, John Richard, 191, 203, 244
New Federalists, 6, 169, 171, 186
Nineteenth Amendment, 90
Nixon, Richard, 109, 129, 149
Old Nick, 26, 28, 29, 110
Originalist, 173, 174
Penumbras and emanations, 6, 84, 149
Planned Parenthood v. Casey, 159
Pornography, 81, 84
Posner, Richard A., 104-106, 131, 192, 205,
210, 244
Powell, Colin, 115
Radical egalitarianism, 80, 81, 202
Radical individualism, 80, 202
Rational Expectations, 181, 182, 215, 239
Reagan, Ronald, 127, 130, 133, 171, 186
Red Monday, 57, 58
Rehnquist, William H., 149, 188, 194, 195,
244
Reign of terror, 5, 15, 16, 32, 36, 191
Religious Freedom Restoration Act, 71
RFRA, 71, 72, 200
Rickey, Branch, 114
Robinson, Jackie, 114, 115, 170, 207, 239
Roe v. Wade, 84, 149, 152, 153, 155-157,
159-161, 212
Romer v. Evans, 86, 87
Roosevelt, Franklin D., 77, 78, 169, 201, 216
249
....................................................................
Scalia, Antonin, 22, 191, 192,
196, 245
School funding equity, 119
Second great commandment of Acluism, 81, 143
Second Great Prince of Usurpation, 55, 56,
129
Secular papacy, 74, 77-79, 83-86, 93, 144,
152, 160, 161
Sedition Act, 16, 36
Seeger v.
Seventeenth Amendment, 60
Sixth Amendment, 17
Slaughter House Cases, 46, 196
Slavery, 39, 41, 99, 185, 195, 212, 232
Stare decisis, 10,
11, 74, 159, 186
Story, Joseph, 34, 200
Substantive due process, 40, 197
The wise, the rich, and the good, 27, 28
Third Amendment, 83
Thirty-Ninth Congress, 43
Thomas, Clarence, 173
Tribe, Laurence, 43, 156, 194, 195, 212, 213,
246
Truman, Harry, 102, 114, 115, 170, 239
Vacco v. Quill, 213
Victims? Rights, 129
Vikings, 55, 56, 61, 198, 240
VMI, 89, 90, 92
Voter apathy, 12, 181, 182
Wage gap, 116
Warren Court, 20, 56-59, 83, 84, 98-100, 102,
125-127, 130, 134, 144, 149, 151, 171, 187, 192
Washington, George, 21, 27, 66, 201
Wealth Gap, 51, 52
Wizard of Oz, 49, 53, 197, 242
Woodward, Bob, 103, 194, 203, 205, 206, 211,
212, 246
250
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