The Temple of Karnak is now out of print.  However, the complete manuscript is shown below.  It's covered by a U. S. copyright; but you may download a single copy for your personal use only.
































THE TEMPLE OF KARNAK


How Rogue Judges Have Been

 Strangling Your Democracy




by


D. J. Connolly











Plum Creek Book Works

North Olmsted, Ohio

January, 2000











THE TEMPLE OF KARNAK


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

North Olmsted, Ohio 44070

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 Egypt. It was built about 3500 years ago to honor a local prince. Back in the late 1930's, the U. S. Government built a new home for the Supreme Court. It was imposing and ornate. One justice is said to have observed, on viewing it, that they would all look like “nine black beetles in the Temple of Karnak.” So far, I’ve been unable to learn which justice was the source.


              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 Northern Ohio.



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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

Mike 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 ACRE                  31

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 MISSION IN LIFE                                             77

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 POTOMAC                                     177

CHAPTER 32: DESIRABLE POLICY RESULTS                                     179

CHAPTER 33: AND ALL SHALL BE USURPED                                   185


 

NOTES AND CITATIONS                                                                         191

APPENDIX: THE U. S. CONSTITUTION                                                219

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 United States. It has two high schools, East High and West High. The rivalry between the two schools’ football teams has been a major feature of local culture for decades. Last year, a youngster living next door to your home was playing on the West High team. He invited you to attend the season finale, the game against East High. It began with the usual rules. However, East High couldn’t seem to move the ball. It had big, strong players but they were slow, and they had no passing game.

        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 TEMPLE OF KARNAK


        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 Temple of Karnak.3

        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 Iraq in 1901. It contained twenty-eight paragraphs engraved on an eight-foot high block of stone. One can still view it in the Louvre in Paris.1

        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 America is blessed with a written Constitution which the people can amend, as needed, acting through those we elect to represent us. And we learned that federal judges are appointed to apply the Constitution and the laws to specific cases. Most Americans, most of the time, trust them to impartially fulfill that responsibility.

        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 England, judges stood in place of the king. So contempt for the judge was contempt for the king. English judges had the power to make one pay dearly for “contempt of court.” American judges wanted that power too, so they so they just assumed it.

        Contempt of court is the only crime in America that can get you jailed without a jury trial. If you commit murder, rape, kidnaping, or treason, you have a right to a jury trial. However, if he charges you with contempt of court, a judge can throw you in jail with no trial at all. And he might keep you there for months or perhaps even years.

        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 Chicago judge threatened to jail a 15-year-old girl and her 12-year-old brother for refusing to visit their father. Actually their "crime" was failing to obey the judge. The news article did not mention a jury trial.4 Maybe the kids should visit their father. Who knows? Maybe the court should have a way to put pressure on them. However, our judges should obey the Constitution. If it is unworkable, we can amend it. All they have to do is convince us that amending it would improve things.

        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 Florida jailed a lady because she ran sobbing from his courtroom.6

        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 Yonkers, New York to pass an ordinance approving some public housing that the people didn’t want in their town. When the ordinance came up for a vote, a majority of the council members voted no. The judge then issued a court order setting forth the following bizarre penalties for continued non-compliance.8

 

       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 Yonkers was clinging to unjust policies. Maybe some of the people cited for contempt deserved to go to jail. Maybe they had committed real crimes. That, however, is beside the point. Disobeying the law is what makes a crime. The Constitution is the supreme law of the land. It requires judges, like the rest of us, to obey it, but they often refuse. A crime is a crime.

        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 Birmingham Alabama, a group of civil rights marchers defied a court order to stay off the streets on Easter Sunday. So the judge ordered them jailed. The court order barring the march clearly violated the First Amendment. So the judge who issued it had ruled contrary to the Constitution. Well, you say. The marchers should have just appealed.

        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 Warren Court provided its answer in 1967. That year, in Pierson v. Ray, it heard a case in which a citizen sued a judge for trampling his civil rights. The citizen had a reconstruction era federal law on his side. It made liable in a civil lawsuit "every person" who misused legal power to deprive another of his civil rights. It didn't say a thing about exempting judges.

        The Warren Court ruled that the law did not include judges even though it said "every person." The Court said that the English common law gave judges immunity for any offense which involved their official acts "even when a judge is accused of acting maliciously and corruptly." It explained that Congress couldn’t possibly be unwise enough to give up such a worthwhile "common law" principle.12

        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 England, most courts were local. They tended to be bizarre and unpredictable, basing their decisions on combat or some other barbaric test. People with money or clout, who didn’t like that approach, got in the habit of appealing to the King whenever they had legal problems. That offered a more predictable and more final resolution of one’s dispute. The King had absolute power. If a law to fit your case didn’t exist, he could just make one up. And once he ruled, there was usually no appeal.

        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 Royal Court. Now all of England had only one law, a "common" law. It did not always dispense justice, but at least you might be able to predict what it would dispense.

        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


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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 England reformed it during the nineteenth century. Today English common law has a lot more influence in America than in England.3

        English colonists in America, prior to the Revolution, were naturally subject to English law. But then the American Revolution freed them from English authority. That's what they had a revolution to accomplish. So America was then free of the English laws. Doesn’t that make sense?

        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 Northeast Ohio, a U. S. District Court ordered the release of a man who had admitted raping a 3-year-old girl. A trial of the accused child rapist had begun, but quickly ended in a mistrial. In his opening speech, the defense lawyer had violated court rules. He had made a statement that the trial judge had previously ruled might bias the jury. So it was not allowed. When he made it anyway the judge declared a mistrial and ordered that they start over


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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 Los Angeles cops, Stacy Koon and Laurence Powell, beating Rodney King, a black suspect. The two cops said that King resisted their efforts to arrest him. TV news programs showed hand-picked segments of the tape. The parts they showed placed Koon and Powell in a very bad light. So the local DA accused them of a crime and they had a jury trial in 1992.

        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. Los Angeles County, at the time, had about four murders per day. It also had over 100,000 gang members. It was known that they deliberately targeted cops. Taking all this into account, the jury found Koon and Powell not guilty.7

        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 Los Angeles still had the option of


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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 Los Angeles in a civil case and received a settlement of $3.8 million. Rodney used part of the money to become a recording executive. He started a rap music label named Straight Al-Ta-Pazz. Its first release was to be titled “Do It How You Wanna.”9







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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 Fort Sumpter. If any congressman announced he was voting to amend the Constitution so that judges might some day protect flag burning, Americans at that time would have made quick work of him too.

        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 U. S. Senators dislike the idea of taking action to counter stealth rule by judges.

        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.


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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, America decided not to have any royalty. Judges, however, figured out how they could assume the role of royalty for themselves. If they continued to operate from the English common law, and placed it above the Constitution, they could exercise essentially unlimited power.

        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


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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 Washington. It turned out that the Federalists also had some bad ideas. Historians describe their ideal as rule by "the wise, the rich, and the good."6 They liked the idea of government by kings. They just didn't like English King George III. However, they were quite fond of eighteenth century English political ideas.

        The best-known Federalist thinker was Alexander Hamilton. They say that Hamilton, at the 1787 Constitutional Convention, proposed that we have a king at the head of our new government. His proposal didn’t get anywhere.7

        After Washington left office and Adams took over the Federalists soon got


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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 Marshall’s clever leadership, could save them from too much democracy. A statement by Hamilton captures their opinion of democracy. In a debate with Jefferson, he said the “people” were “nothing but a great beast."8

        Marshall turned out to be a very good choice for the job. He was bold, patient, and cunning. He was committed to a mission. His mission was to secure rule by the "wise, the rich, and the good." The best way to do that was to take power from the people and put it in the hands of judges. Judges could listen to the wise, the rich, and the good. They were in office for life. So they could ignore the views of the "great beast." Marshall would establish "judicial supremacy." All the tools that he needed could be found in The Prince.

        In Marshall’s time, The Prince had been available in English for at least a century.9 Most educated people were aware of it. Those who cared about power had read, or maybe even studied, it. Marshall’s whole career was a case study in the techniques it taught. The Prince taught that one should take a long-range view. Old Nick also taught that a prince should not bother about honesty. You had to be a good con artist to succeed in power politics. Conning people was easy if one lacked respect for truth.

        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




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        Of course the America of Marshall’s time did not have nobility of exactly the same type as did medieval Italy. However, a careful observer could see that it had a close parallel. Marshall was a careful observer. In every era, members of an elite minority make careers “commanding and oppressing” the majority. They arrange to live very well by controlling access to government decision-making processes. In Marshall’s time, “the nobility” was mainly wealthy Federalists and lawyers.

        Marshall knew that he had to ally himself with this group’s designs to command and oppress the majority. That served his personal biases; he was a member of that “nobility” himself. He had contempt for the people and was confident he could fool them as often as necessary. A lesson from the history of English common law helped inform this decision.

        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 England centuries before Old Nick published The Prince, and he never figured out all its lessons for himself. So he angered both the nobility and the people at the same time. Robin Hood’s gang, according to the stories, caused John a lot of trouble, but the stories were only folk tales. There’s no real evidence that the people had any success in curbing John’s tyranny.

        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 Runnymede. The Magna Carta placed limits on the powers of English kings forever after.11

         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.

Marshall practiced all these lessons from English history and The Prince. His judgements served the agenda of an elite minority. He practiced trickery and deceit. And he followed a long range plan patiently creating “judicial supremacy.”12 He was so good at this game that he merits the title of The First Great Prince of Usurpation.

        Let me describe, for example, his rationale for “judicial review” of laws passed by Congress or the states. First he pointed out that, in America, all power flows from the people. The people had expressed their will in the Constitution. It was the supreme law of the land. It created a judicial branch whose functions included picking which laws applied to each case.

        Some cases raised issues the judges had to resolve by consulting the


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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 Marshall, "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 law."13

        So far it sounds pretty good, doesn't it? However, Marshall's ideas continued more or less along the following lines. The judges already have all the guidance they’ll ever need from “We the People.” Now that they’ve spoken, they should just shut up and sit down. They can elect folks to take care of minor day-to-day chores, but the judges will do all the heavy lifting.

        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.


 
 
 
 
 
 



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CHAPTER 4

ONE AND ONE-HALF CENTS PER ACRE




        In 1994, the people of California voted to pass Proposition 187, an amendment to their state constitution. The amendment would have ended the education of illegal aliens in California public schools, thus saving the state $2 billion per year. Sneaking into the country was a crime. California voters thought they could lower the crime rate if they removed a $2 billion incentive.

        Citing a Supreme Court precedent, a federal judge struck down the Amendment. In 1982, in Plyler v. Doe, the Burger Court had ordered the State of Texas to provide free public schooling to the children of illegal aliens.1

        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 California at least, a majority did not agree. In any case the debate should be resolved in a way that does not violate the Constitution. Its Eleventh Amendment would seem to forbid federal judges from hearing this kind of case.

        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 Connecticut. The state had a rule  
 
 
 



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requiring lawyers licensed to practice there to be U. S. citizens. The Dutch lawyer sued in federal court. The judges took the case. It moved up the ladder to the Supreme Court which struck down the rule.3

        The Eleventh Amendment has a rather interesting history. John Marshall, the First Great Prince of Usurpation, played a big role in the story. Marshall wasn’t a judge in the 1790's. So he didn’t take part in the reign of terror. He hit his stride a few years later by nullifying the Eleventh Amendment.

        The story begins in 1792 when the Supreme Court ordered the state of Georgia to pay a large sum of money to two citizens of South Carolina acting as executors for a resident of Great Britain. “We the People” thought the ruling went beyond the constitutional power of judges and resolved not to let the usurpation go unanswered. The people had worked hard for their money. They wanted their local tax dollars to be used for things they understood. And they didn't trust federal judges anywhere near their public treasuries. So they adopted the Eleventh Amendment to fix the problem.4

        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 Marshall Court sat from 1801 until 1835. It heard many important cases in which a state raised the Eleventh Amendment as a defense. Every time the judges offered a nonsense excuse. Then they went ahead and heard the case anyway. The Taney Court, which sat from 1837 until 1864, followed Marshall's lead. It heard five cases in which a state cited the Eleventh Amendment as a defense. All five times the Taney Court made up a ridiculous excuse and ruled that the Amendment didn't apply.6

        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  
 
 
 



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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 Union. Even the fifteen states that joined before the Amendment was adopted gave an implied waiver.

  ■      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 Marshall Court earned the grand prize for the most comical scheme to get around the Eleventh Amendment. That year the Court decided Fletcher v. Peck. The case concerned a famous swindle, the Yazoo Land Fraud.8

        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 New England companies. Thirty-five million acres is a lot of land. In this case it was most of the present states of Alabama and Mississippi. The sale price was about 1 1/2 cents per acre. The people of Georgia soon learned that the land companies had secured this great deal by bribing all the legislators except one. In an election later that year, they threw the scoundrels out.

        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 Georgia passed a law declaring their titles invalid.  
 
 
 



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That law also ordered the Georgia courts to keep their noses out of the matter.

        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 New England resident named John Peck had fenced part of the original booty. He had given a piece of the action to Robert Fletcher. The scheme was simple. Fletcher sued Peck in federal court, demanding his money back. Peck claimed that Fletcher didn't have a case because his title was good. He claimed that the Georgia law canceling the sale was "unconstitutional." It violated the "contracts" clause.

        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 Georgia's cancellation of the crooked deal.

        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 Georgia was not a party to the case. It then ruled that Georgia had to honor the fraudulent titles. If you own property in Mississippi or Alabama, you might be an unknowing accessory to bribery and fraud.



A WISE PRINCE DOES NOT KEEP FAITH


        The Fletcher v. Peck case showed most of Marshall's biases. He favored a strong central government, with no real power left to the states. He had contempt for elected legislators. They responded to the passions of the ignorant masses. He thought that unelected judges alone could govern wisely. Like  
 
 
 



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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 Marshall Court moved legal custom slowly, but relentlessly, toward his goals.

        Marshall avoided big leaps that would create a powerful majority against him. He knew that Supreme Court power grabs, if chosen wisely, need never be met by united opposition. Usually the victim was a state. The states could rarely form a united front on any issue.

        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.

        Marshall had come to the Court from a job as Secretary of State in the Adams Administration. Before leaving office, in 1801, the lame duck Adams team did all it could to pack the courts with Federalists. Marshall, as Secretary of State, signed some appointments, but neglected to deliver them. The documents were still laying around when James Madison, the new Secretary of State, came to work. He stuck them in a drawer and forgot them. Why should he help his political enemies?

        Marshall had promised one of the jobs to a fellow named Marbury. Marbury was counting on it. So he sued in Marshall’s Court to get it. The Court didn't respond until 1803. Marshall needed time to think up a clever way to handle the case. If he had ordered Madison to give Marbury the job, the Jefferson Administration would have refused. Judicial power would suffer a damaging blow. Congress was also getting ready to impeach some Federalist judges and Marshall didn’t want to add fuel to the fire.10 On the other hand, if Marshall had ruled against Marbury that would have strengthened the Republicans’ position vis a’ vis the Federalist judges.

        Historians consider his ruling a stroke of genius. Marshall said that he couldn't take the case. He said that Section 13 of the Judiciary Act of 1789 (the law Marbury had used to lodge his suit) was unconstitutional because it added to the Supreme Court’s original jurisdiction as specified in the Constitution. He wrote a long, erudite opinion that focused on the sacred duty of judges to overrule laws that they thought in conflict with the Constitution. He also included a gratuitous slap, which he admitted had no legal effect, at the  
 
 
 



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Jefferson Administration.10

        Marshall had put a very important stake in the ground. He had claimed that judges had the power to overrule acts of Congress. Judges, then and later, treated Marbury v. Madison as a precedent. Marshall’s claim had no basis in the Constitution. Even English common law did not support it. In fact William Blackstone, the universally accepted authority on English common law, had warned that allowing judges to overrule legislators would be “subversive of all government.11

        However, nobody bothered to challenge Marshall’s claim at the time it was made. Since the Court had declined to back Marbury, the Republicans saw the judges backing off from a fight. That gesture may have saved Marshall and some of the others from impeachment. It may have changed some votes in the Senate.10

        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. Pickering was impeached and convicted without a hitch.12

        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. Marshall served as Chief Justice for thirty-four years. During that time the Supreme Court wrote most of his biases into the Constitution. To be more precise, it wrote his biases into a counterfeit constitution. Judges can’t write anything in the real Constitution.

        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  
 
 
 



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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

 
 
 
 



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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 America. And it’s had a very big impact on all our lives. In this book we’re simply going to call it the “due process scam.”

        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 Taney Court did what the Supreme Court often does. It first picked the outcome it wanted. It found a few scraps of evidence to support that outcome, ignoring or distorting a larger volume of evidence to the contrary. It then ruled that its desired outcome was demanded by the clear voice of the Constitution.

        History books say the Dred Scott case was mainly about slavery, an issue that had caused stress in America since the founding of the nation. The founders had gained a measure of unity by putting it on the back burner. They did what they had to in order to get a deal, writing a Constitution which protected Southern slave owners until 1808.

        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 Wisconsin Territory.

        Dred Scott was an elderly slave who sued his owner, named Sanford, for his freedom. They had lived, for a time, in the Wisconsin Territory. Scott's lawyer, therefore, claimed that living in Wisconsin had made him free.

        Sanford's lawyer needed a way to deal with that claim. So he asked the Court to suddenly discover that the thirty-seven-year-old Missouri Compromise was unconstitutional. The Supreme Court went along with that. The record  
 
 
 



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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 U. S. territories. Therefore, the Missouri Compromise lacked a foundation in “due process of law.” So it violated the Fifth Amendment.

        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 Hamilton of being biased against broad powers for judges. He liked broad powers for judges. He was biased against any real power for the people. The intended meaning of “due process,” therefore, was completely settled among our original founders. Consequently, the legal scholars saw the invention of substantive due process, in the Dred Scott decision, as a shameless deception to throw the case in favor of slave owners.

        The members of the Taney Court had thought their deception was perfectly safe. They knew there weren't all that many legal scholars out there. Most of the people didn’t have a clue what due process was supposed to mean. All they knew was that it sounded important. So the Court just made up a new meaning. It brazenly usurped power to amend the Constitution to reflect the most extreme view of the weaker side in a great dispute.

        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


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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 Cincinnati, Ohio, in September of 1859, Lincoln suggested what he thought should be done about a renegade Supreme Court. “The people of these United States are the rightful masters of both congresses and courts, not to overthrow the Constitution, but to overthrow the men who would pervert the Constitution.”5

        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.






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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 America, so they can certainly have as much gender equity as they want. But there’s no requirement for gender equity in the Fourteenth Amendment which says quite the opposite. It directs that the number of seats which each state would have in Congress would depend on whether or not that state allowed all its male citizens to vote.1 It’s quite a stretch to believe that the founders wrote the Fourteenth Amendment to violate the Fourteenth Amendment.

        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 Washington, D.C. schools. It kept those schools segregated. That practice began in 1864 and lasted for about ninety years. When the Senate voted to adopt the Fourteenth Amendment, it had separate black and white sections in its visitors’ gallery.3

        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


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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 United States.”7

        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 Ohio. Bingham has been described by historians as “one of the best constitutional lawyers in Congress” and “the leading House moderate” on the Joint Committee on Reconstruction (which drafted the Fourteenth Amendment).10

        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


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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.

        Campbell was a former member of the Supreme Court. He had been a member of the Taney Court majority that invented the due process scam. A little later he had resigned his seat to go back home and fight for the South. After the war he got back into the lawyer business.

        Campbell filed the suit that led to the second landmark case in the history of the due process scam. He argued the plaintiffs' side in the "Slaughter House Cases." His client was a group of butchers whose business was ruined by a rather smelly piece of graft in Louisiana.15 The State Legislature had awarded a monopoly on the butcher business in New Orleans to a group of businessmen. The butchers were not happy about this. Before long it came out that the favored group had scored this coup through bribery.

        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, Campbell was probably the world's greatest expert on the due process scam. Roger Taney and three other Taney Court judges had died. Two others had retired. John A. Campbell was the only co-inventor of the scam who was still active.

        Campbell couldn't win by using his connections because his friends from the old days were all gone from the Court. But he did have some other things going for him. He was a very creative lawyer. And he was selling an idea that the judges loved. He was trying to convince them to expand their power. In addition, the butchering monopoly was the most offensive piece of graft any of them had ever seen. The group that gained the monopoly had bribed members of the State Legislature, various bureaucrats, the Governor, and editors of two local newspapers. They had left no stone unturned. However, the judges were well aware that its framers did not intend the Fourteenth Amendment to cover this sort of case.15

        Campbell tried all three “vague” phrases in Section 1 of the Fourteenth Amendment. But the judges knew that they were still on probation. So a majority played it safe. Five years after the adoption of the Fourteenth Amendment, the Supreme Court declared that the phrases really weren’t all that vague.

        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 America around the turn of the century.1

        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, Roosevelt's Solicitor General, Robert H. Jackson, wrote that the Supreme Court had usurped the powers of a "continuous constitutional convention."4

        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 Kansas. The Supreme Court did not deliver a happy ending in 1929. It delivered the Great Depression.



 
 
 
 
 
 
 
 



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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. Marshall’s successors held onto the judicial powers he had created. They also developed the due process scam. But none of them, for more than a century, achieved the status of a Great Prince. The Second Great Prince of Usurpation did not appear on the scene until 1953. That year President Eisenhower appointed Earl Warren as Chief Justice of the Supreme Court.

        Ike had commanded our armed forces in a war in which millions of people died. He became President while our troops were fighting in Korea. We were still far from secure against foreign threats. So he thought we needed a period of peace at home. Therefore, he didn’t want to appoint any legal bomb throwers to the Supreme Court. Ike’s advisors convinced him that Earl Warren was a “safe" nominee. Warren, a Republican governor of California, would interpret the law as written, not make up wild new legal theories that would upset a lot of people. So Ike went along and Earl Warren became Chief Justice.

        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, Denmark, Norway, and Sweden.

        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 Europe. At first they merely raided seacoast towns and monasteries. They would attack from the sea, kill those who resisted, steal anything of value, and sail off. When they left, they often took survivors along as slaves.3

        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 England, Ireland, France, and Russia.

        In 911 AD, a Viking chief called Rolf the Walker and his men were rampaging in France. Rolf was a very big guy, that’s why they called him Rolf


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the Walker. They couldn’t find a horse strong enough to carry him for long.

        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 France which then took the name of Normandy, or "North-man-dwelling." Normandy is right across the channel from England.

        Rolf’s Vikings and their descendants lived in Normandy for about 150 years. They learned to speak French and maybe even a bit of Latin. After a while, people quit calling them Vikings and called them Normans instead. They married local girls and built up their numbers. They also studied European politics and practiced their fighting skills. Then, in 1066 AD, they sailed over to England, killed the king, and took over. The descendants of Vikings ruled England from that time on. Vikings, in a sense, gave us the English common law.4

        By 1100 AD, the era of Viking raids was over. The most aggressive men from Denmark, Norway, and Sweden had scattered their Viking genes all over Europe. Those who remained at home were much more peaceful. Residents of Denmark, Norway, and Sweden have long been among the most civilized people on earth.

        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 Warren Court did to the Constitution is a lot like what the early Vikings did to Europe.



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 California, Warren had persuaded the federal government to force 70,000 American citizens into concentration camps. In the 1930's, many California voters had a strong bias against Japanese-Americans. They worked too hard and too cheap. They were also very visible targets.

        In the months after the Japanese attack on Pearl Harbor, racists in the state saw a chance to strike a blow against "the yellow peril." They claimed that all Japanese Americans were security risks. Never mind that they were born here. Never mind that they were U. S. citizens.

        Earl Warren tried to give the voters what they wanted. As California’s Attorney General, he became the most visible advocate of locking up the Japanese-Americans. Not one of them was charged with a crime, much less convicted. No crime had occurred. One could argue that this smelly affair violated six of the first fourteen amendments to the Constitution.6

        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 California voters still wanted to keep the prisoners locked up. So Earl Warren again trampled the Bill of Rights for political gain. He made Joe McCarthy look like a choir boy.8



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.

        Warren led a war against America’s legal tools for fighting communist spies. In 1956, the Warren Court struck down all state laws against promoting the violent overthrow of our government. The Court said we had a federal law to handle that problem. Congress had passed the Smith Act in 1940. So we didn’t need any state laws to cover the same ground.9

        Then, in 1957, the Warren Court dropped the other shoe. It handed down four decisions that gutted the Smith Act. Newspapers called that day “Red Monday.” Effective federal laws to deal with communist subversion were now “unconstitutional” too.10 All of this upset a lot of people.




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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 America had made that threat more real. They knew that the Soviet Union had acquired modern nuclear arms partly by stealing our military secrets.12

        A few months earlier, in November 1956, the Soviet Army had invaded Hungary to keep the slaves in line. Twenty thousand Hungarians were killed.13 The American people knew that communist governments had recently killed 54,000 American troops in Korea.14 The Korean war wasn’t over either, it was just suspended by an armistice. Many folks also knew that the Soviet Union had a (temporary) lead in long range missile technology and had threatened to use it to obliterate America.15

        The Warren Court made it a lot tougher to cope with those threats. It ruled against the government in twenty-two out of thirty-one cases involving communist agents.16 In 1967, it even ruled that communists had a right to work in defense plants.17 Lots of people were aware that Earl Warren had led a movement to lock up thousands of innocent Japanese Americans. So they didn’t think he should be quite so picky about the rights of guilty communists.

        They were also well aware that our Constitution named the President as Commander-in-Chief and assigned him primary responsibility to assure America’s security in a dangerous world. It assigned to Congress the power to “raise and support armies,” and to “declare war.” It said not a word about a role, much less a supervisory role, for judges in these dangerous areas. In fact, our founders had gone out of their way to make it clear that judges would have no control over either the “purse” or the “sword.”18

        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 Warren Court for days. In the end, the votes weren’t there. The Viking Court escaped with only its ears burning.19



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 Viking Court was looking for a chance to “extinguish” the political “family” of those who had attacked it.20

        Its chance soon came along. But it required that Earl Warren change his stripes again. Back in 1948, Warren was governor of California. Voters in the state faced a proposal to amend the state constitution to apportion the state senate in keeping with the "one man one vote" principle. At the time it was apportioned just like the U. S. Senate. California Senate seats, like those in most other states, went with counties no matter how many, or how few, people a county had. Warren opposed the proposal. He didn’t think he would like the political results.

        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 Viking Court’s political critics.

        Of course no one can prove what the Warren Court members’ motives were. They certainly did not admit publicly that they twisted the Constitution to shift political power from their critics to their political allies. However, keep a couple of things in mind. Conservatives had been criticizing the Warren Court for years. They had tried to curb its power and even called for Warren’s impeachment. So Earl Warren and most of his colleagues had undoubtedly acquired a deep resentment of conservatives. Rearranging state election rules, to shift power from rural to urban areas, was a good way to damage conservatives.

        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 Warren Court got those radical new ideas. Thirty-two states called for a constitutional convention to overturn the ruling. Two more would have done it.22 The judges claimed the opinion was based on the Fourteenth Amendment. All the evidence showed that the authors of that Amendment had intended quite the opposite. The Amendment plainly says that states may deny the vote to Blacks and women. Its Section 2 clearly assumed that states would continue to call the shots on


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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 U. S. Senators. That Amendment expressly kept the rule which allotted two Senate seats to each state. At that time, New York had about 120 times as many people as Nevada.24 So it’s pretty clear we never put one-person-one-vote in the Constitution. People whom we elected never put it there either. It's not there.



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 Warren Court’s actions, it might have taken another decade to reform our election rules through normal democratic processes. I approve of the result but not the method. Supreme Court usurpations, such as this, undermine our democratic system of government. The judges engaged in vigilante justice, they made a mockery of the rule of law.

        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. Dudley was driving.

        When they got to the parking garage, Dudley got in line behind several other cars searching for a place to park. The line slowly wound its way upward through the parking garage arriving, after fifteen minutes or so, at the roof. There Dudley had to carefully maneuver his car into a partial space left by a Mercedes that had taken a parking slot and part of the next one. By this time Dudley was quite irritated. On the way up through the parking garage he had counted twenty-four parking slots rendered useless by selfish bums who had carelessly, or deliberately, parked their cars straddling the lines between spaces.

        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. Dudley said it sounded like cats fighting in their back yard at two o’clock in the morning.




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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, Dudley wanted to retrace, on foot, the path they had taken earlier by car. As they walked upward through the garage, Judge Dudley paused and keyed the driver side door of each offending car. Gwendolyn was dying of embarrassment and pleaded with him to stop, but Dudley was determined to finish the job.

        In due course, they climbed back in the car window on Gwendolyn’s side, and Dudley carefully maneuvered their car out of the partial space. Reaching his left hand holding a spare key out the window, he left a big gouge in the side of the Mercedes as he drove away.

        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 Dudley was way out of line. Admittedly, the twenty-four leading citizens had each stolen someone else’s share of a public resource. Dudley’s vandalism served a rough form of justice. Maybe it would cause them to think twice before repeating their theft in the future. However, they hadn’t violated any law; so there was no legal way for Judge Dudley to mete out the punishment they deserved.

        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 Dudley, they had practiced vigilante justice. Their action, in fact, was a lot worse than Dudley’s. The Supreme Court is America’s premier symbol of the claim that we’re ruled by laws, not men. Earl Warren and his Vikings made a mockery of that claim. If Supreme Court justices don’t obey the law, how can they expect anyone else to obey it?






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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 Marshall was the founder and patron saint of the power of “judicial review,” his statements on the limits of that power bind his disciples. Marshall promised that we could depend on the judiciary to always follow the cardinal rules of judging. The first quote is from his opinion in Ogden v. Saunders, 1827:


        “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 Marshall’s opinion in Osborn v. Bank of the United States, 1824:

 

        "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 Marshall's promise to follow the “intention of the instrument,” its landmark decisions concerning the Constitution and its ancient amendments would become less frequent as time passed. The justices would accept the obvious truth that early rulings, on any issue, are more likely to follow the intention than later ones. As time passed memories would dim, records would be lost, and the meaning of words would change. Radical new rulings, therefore, would invent totally new content. They would usurp legislative powers.

        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, Madison said:4


        “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 United States, and the government . . . will become as venal and oppressive as the government from which we separated."


        By "the government from which we separated" Jefferson meant that of English King George III. King George was so unbearable we had just had a revolution to get rid of him.


        The warnings didn’t stop with our original founding fathers. President Andrew Jackson, who had defeated the British at New Orleans in the War of 1812, warned us in 1832:6


        “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. Marshall had a well-documented bias in favor of federal power vs. state power. One must assume he would have preferred to rule the other way. But he knew the people would not have stood for it. In 1833 the truth was still fresh in their memories.

        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 England, the birthplace of our common law tradition, the use of religious symbols by tyrants was routine. English kings ruled by "divine right." They were the anointed of God. If you didn't obey them, you were going to hell. You were going to hell after they cut off your head, of course.

        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 America. The judges, therefore, needed to change their act. They wanted to hold on to their priestly imagery to bamboozle the people. But they could no longer base their claim to be God’s spokesmen on “the divine right of kings.”

        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 MISSION IN LIFE




        For America’s first century-and-a-half, the secular papacy lived in peace with the other American religions. It was not foolish enough to attack the mainline Christian faiths in the 19th century. At that time, those faiths had a powerful hold on the minds and hearts of the people. As late as 1892, the Supreme Court admitted that “this is a Christian nation.” Furthermore, in order to make its meaning clear, the Court listed 87 quotations, court cases, laws, and anecdotes to support its understanding that America was founded on Judeo-Christian principles.1 For the first 150 years of the Republic, there was no serious argument with this understanding. However, changing times brought new needs and new opportunities.

        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 Washington." One third of the building's cost was spent on marble. The builder shipped it in from several states and at least three foreign countries. When the new cathedral opened for business one justice called it the "temple of Karnak." Another asked, "what are we supposed to do, ride in on nine elephants?"2

        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 Roosevelt in a landslide. His fellow Democrats also gained a big edge in Congress, so he was in a good position to make some changes. The first item on his do list was to straighten out the Supreme Court. He went on the radio and attacked it for blocking his programs to cope with the Great Depression. And he submitted his famous court packing plan to Congress.3 Members of Congress were a little reluctant to rush into such a drastic cure for the problem. So they decided to kick the idea around for a while.

        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. Roosevelt had mounted a major threat against judicial supremacy. He had gone on the radio and told the people that the Supreme Court was the problem. He had proposed laws to take away most of its power. Those laws might have passed if the judges hadn't backed down. FDR had forced them to eat crow.

        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 America’s founding. When “We The People” adopted the Constitution and the Bill of Rights, Christian symbols were everywhere. I’ve included a few examples in the Notes and Citations section.5

        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 United States. Of course they never said that openly. They said it by their actions.

        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 Northern Ohio. Some local judges were sending drunk drivers to Alcoholics Anonymous (AA) meetings. The lawyer running the Ohio ACLU chapter threatened to beat the local judges on the head with the power of the federal courts. She said that AA has a "spiritual component." Therefore, local courts are not allowed to mess around with it.7




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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 America. Let’s take a brief look at some of the things that embrace has done to our national welfare.

        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 Warren Court decided the case of Griswold v. Connecticut. It struck down a state law restricting the sale of birth control devices. The Court ruled 7-2 that the law was unconstitutional. A justice in the minority, named Potter Stewart, said that it was "an uncommonly silly law." But he pointed out the obvious. There was nothing in the Constitution to support annulling it. He lost 7-2. The other justices said in effect, "to hell with the Constitution. It’s whatever we say it is. Who is going to stop us?"

        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, Douglas’s hodge podge became a precedent. So it became part of the bogus constitution. It created a right to what the judges called “privacy.” The Burger Court later used it to defend rulings on abortion.

        In 1973, the Supreme Court decided two "landmark" abortion cases, Roe v. Wade


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and Doe v. Bolton. Both cases were "moot," as the lawyers say, by the time they reached the Supreme Court. The women were no longer pregnant. So no real "cases" or "controversies" remained to be decided. The Supreme Court defied the Constitution by even hearing the sham cases.

        The Burger Court used Justice Douglas’s hodge podge as a precedent. And it used the old faithful due process scam. You can read the details in the chapter entitled, "Penumbras and Emanations." For now I only want to point out that the rulings described above were all in accord with the first great commandment of Acluism. They all trashed traditional American religious values.

        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 Warren Court began writing protection for porn in the judicial bible. It ruled that states and cities could not interfere with the sale of Lady Chatterly's Lover. Lady Chatterly's Lover seems pretty tame today, doesn’t it? Edicts from our secular papacy drive changes in public attitudes. They certainly affected the attitudes of the teenagers who had all of those babies.

        The Supreme Court, in the 1960's and 1970's, kept very busy finding porn to protect. On one day, in 1966, the Warren Court decided three different porn cases and wrote fourteen different opinions.3

        The Burger Court, in the 1970's, went far beyond protecting porn in speech and literature. It wrote protection for dirty movies, topless dancing, and other "expressive behavior" into the judicial bible. The First Amendment was


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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 Alabama law that barred the state's public colleges from using state funds to support gay-student groups. He ruled that the law was "naked viewpoint discrimination" and violated the First Amendment.8

        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. Hawaii, like all the other states, until recently had laws against homosexual acts. The same people who passed those laws also adopted the State Constitution.9 The judges claimed that Hawaii's people, who passed laws outlawing “gay” acts, also put in their Constitution the right to sanctify those same acts in marriage. That claim seems highly unlikely. No, it seems absurd. A year or two later, the people of Hawaii reminded them how absurd it was. They took the trouble to amend their Constitution to rescind the bogus amendment passed by their judges.10

        The U. S. Supreme Court, in 1997 (Romer v. Evans), struck down a provision, added by the people of Colorado, to their State Constitution. The people didn't want their state and local lawmakers to impose “gay rights” on innocent bystanders. The people wanted to be sure the message got through. So they put it in their Constitution. The U. S. Supreme Court “struck it down.” The amendment violated the first great commandment of Acluism.11

        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 Colorado had the nerve to install their moral values in the law. Their votes were tainted by religious impulses.

        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 America's loss of community. A whole book, published under the name of Hillary Rodham Clinton, described the need of children for the nurturing of a “village.”12 Our “villages” are all dead. Long ago federal courts helped kill them off.

        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 Littleton, Colorado massacre in early 1999. Two members of the “trench coat mafia” brought guns and bombs to school and murdered a dozen innocent people.13

        Spokesmen for the media denied any responsibility. Various liberals echoed the denial, blaming guns instead.14 Nobody mentioned the root cause of the Littleton massacre. Nobody mentioned a lawless Supreme Court.

        The Court spent decades smashing down barriers to paganism in


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America’s public places, thereby clearing the way for the emergence of the trench coat mafia. Its rulings helped create teen-age mass murderers.15 Court defenders claim that the First Amendment left them no other choice. They claim that our founders intended the First Amendment to strip our villages of all protection against barbarians. However, no one ever explains why it took the justices 150 years to discover that intent.



 
 
 
 
 
 



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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.

        Florida voted on a proposed state ERA in 1978. Early polls said it would win by two to one. However, before the election, interested groups campaigned for and against it. Opponents warned the voters about what the courts might do with it. For the most part, advocates agreed with the opponents’ claims about what the courts might do. They said that was exactly why they wanted it.

        The people listened to both sides. When the time came to vote, they had changed their minds. They voted down the Florida State ERA by a two to one margin.1

        Maine had an election to ratify a proposed state ERA in 1984. Polls a month before the election said that 62 percent of the voters would vote yes. After hearing both sides of the story, 63 percent voted no.1

        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 Spain’s ecclesiastical principality burned “heretics” at the stake for “the glory of God.”

        Ivan explains that one day Jesus Christ visited the Spanish city of Seville. All those who encountered him knew it was he, and the word spread. That got the attention of those in power, the bishops and cardinals of his Church. They reacted by throwing him in jail. Christ's highest ranking apostle in Seville, the “Grand Inquisitor,” came to visit him there.1

        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 U. S. Supreme Court as the Grand Inquisitor. Our Acluist legal establishment is analogous to the fifteenth century Spanish Church.

        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 Germany. And Germany was at least as great a threat to American interests as was Japan. That’s why our government decided to concentrate on defeating Germany first while “containing” Japan.

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 Washington in 1954, racism wasn’t cool. Being a liberal was cool. So Earl became a liberal.

        Warren’s first big case on the Supreme Court was Brown v. Topeka. A young black girl named Linda Brown had sued the Topeka, Kansas Board of Education. It had required her to ride a bus two miles to a public school. She wanted to simply walk to a school four blocks from home. At that time, seventeen states and the District of Columbia still had public schools segregated by law. And the white children were offered much better schools than the black children.

        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 Washington, D.C. schools segregated at the same time it voted to adopt the Fourteenth Amendment. The Senate, at that time, also had separate black and white sections in its visitor’s gallery.

        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." Warren said, in effect, ‘to hell with the framers. The Constitution is morally wrong and we're going to fix it.’

        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 Jackson liked it or not. If he held out, his dissent might encourage “We the People” to defy the Court. If the ruling was unanimous, the people were more likely to accept it. So Jackson knuckled under.



A VIKING DREAM


        Back in 1941, a young woman named Evelyn B. Granville graduated from the Washington, D.C. public schools. Ms. Granville went on to receive one of the first doctorates in math ever held by an American black woman. After an eminent career in our nation’s space program, she went home, in early 1999, to attend a ceremony in her honor. Dr. Granville was quoted as praising the D.C. “colored schools” of her youth for their “culture of learning” and for having “well trained and dedicated teachers.”5

        In 1954, along with Brown v. Topeka, the Warren Court decided Bolling v. Sharpe, which concerned the D.C. schools. You will recall that the framers of the Fourteenth Amendment kept them segregated during the same session of Congress that adopted the Amendment. Congress had never changed that policy.

        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 Viking Court then used the same scam to integrate public schools.

        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 Warren Court dodged its duty to decide the plaintiffs’ case. Instead, it ordered that public schools should admit students without regard to race "with all deliberate speed." It passed a law to guarantee the rights of the black race somewhere off in the dim, fuzzy future.

        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 Warren Court ruled that the Constitution not only allowed racial bias in school assignment, but demanded it.

        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 Viking Court. It now no longer wanted public schools to admit students “without regard to race.” Now the Court said that the laws must coerce both Blacks and Whites in order to serve a liberal social theory.

        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 America’s urban public schools. The road to hell is surely paved with good intentions.




 
 
 
 
 
 
 
 



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CHAPTER 16

THE HOSTAGE THEORY




        Back in the 1950's, most black children received an inferior education in America’s public schools. What do I mean by inferior? The kids learned to read and write and do elementary math. They learned to speak English. However, their education was not equal to the education most white children received at the same time.

        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 America’s public schools. The education black children receive in big cities is worse than inferior. It’s pathetic.

        Failed urban public schools helped produce a black ghetto whose residents evolved their own language. Having failed to teach English, school bureaucrats in Oakland, California decided to make a course of study out of ghetto street language. They called it "ebonics."1

        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 Warren Court angry. It offended their sense of the Court’s power and prestige. All over America racial injustice was on the decline. Pro baseball had discarded racist policies a decade earlier. Harry Truman had integrated the Army. The Supreme Court had tried to grab part of the action too. And nobody had paid attention.

        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 America. Their orders cited the sacred duty of federal judges to uphold the U. S. Constitution. But those orders trashed the Constitution. They demanded that school boards assign students by race. They demanded widespread use of the same outrageous practices that had caught the public attention when the Supreme Court heard Brown v. Topeka.

        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 America. Reformers outside the system want to fix the problem by making teachers, and other insiders, more accountable. They also want to make the public schools compete for students. Insiders, on the other hand, want the taxpayers to throw more money at the problem. This book claims that renegade judges deserve much of the blame for those failed schools. It's time for an example to support that claim. It’s time for a case study.

        In 1976, a federal judge took over control of the Cleveland, Ohio public schools. He and his successors held that control for about two decades. Let’s look at the results. We’ll see “equal protection of the laws” in action. We’ll see who got protected and who got the shaft. We’ll see what Judge Posner meant by patronage.

        In 1954, at the time of the Brown decision, Cleveland had excellent public schools. They maintained their quality for another decade or so. In the mid 1960's, the system provided a decent education for about 150,000 students. In 1973, a group of “civil rights” lawyers sued the Cleveland school board. They acted in the name of one Robert Reed III, a black student. They claimed that Cleveland had been running a segregated system. And they claimed that it had been done on purpose. The lawyers got a court order to search the files for proof. After a couple of years they had found a fair number of records that fit their story line. The public school bureaucrats, on behalf of the people, agreed to a consent decree.

        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 Ohio as a defendant. The State had deeper pockets than the Cleveland School Board.

        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 Cleveland schools to improve their quality. But most of its other provisions forced that quality to steadily decline.

 

       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 Cleveland schools.

       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 Cleveland. So most of the more able students left the system.

       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 Cleveland schools were still not following the Constitution. So the Ohio taxpayers had to keep sending them money. That’s what Judge Posner meant by patronage. The lawyers had collected about $10 million by 1996. Total spending on the consent decree was about $105 million in 1995 alone.2

        The State of Ohio and the Cleveland public school system were projected to spend $1.2 billion on the consent decree by the year 2000. The federal judges didn’t want to take the blame for that. So they quietly got out of the picture.3

        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 Ohio placed Cleveland at 595 out of 600. Most of the 600 were poor rural districts. Only one urban district ranked below Cleveland. Dayton, at position number 596, was also under the control of a federal judge.4

        By 1997, the graduation rate in the Cleveland schools had fallen to about 33 percent. But the schools failed to educate even those who graduated. Only 7 percent had learned enough to pass the state test of ninth grade skills.4

        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 Cleveland consent decree. You can find sources for the numbers I quote in the Notes and Citations Section in the back of the book. I also explain my calculations in that section.6

        Recall that the consent decree in Cleveland cost $105 million in one year alone (1995). This large a one-year expenditure suggests that, during the two decades it was in effect, the decree wasted well over a billion dollars of the taxpayers’ money. During that time, more than 200,000 students passed through the system. They wasted a total of about a quarter of a billion hours on buses.6

        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 Cleveland.

        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 Cleveland even if they had to walk. As they saw it, their children’s futures were at stake. As they saw it, they needed to escape injustice. The flight of the middle class ruined the quality of life for those who remained.

        Cleveland, like many other Northern cities, has recently enjoyed about a decade of modest recovery. The 1997 edition of "Places Rated" ranked the Cleveland area 25th out of 351 communities across the U. S. But the local newspaper ranked the public school system 595 out of 600 in Ohio. In Cleveland, the public schools had been under the control of federal judges for 20 years. God only knows how long it will take them to recover.








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CHAPTER 18

THREE-BILLION-DOLLAR TAJ MAHALS




        The story of the Cleveland consent decree makes a couple of things fairly clear. A federal court’s seizure of local schools can cause them to get a great deal worse. It can also put a lot of public money into play. However, the Cleveland case does not show all the legal tricks. We can observe one or two others by looking at the Kansas City case. The story of the Kansas City case, curiously enough, begins in Detroit.1

        In 1973, the Supreme Court heard the case of Millikan v. Bradley. It involved public school busing in the Detroit area. The City’s schools couldn’t be integrated because most of the white families had voted with their feet to avoid forced busing. Some civil-rights lawyers scrounged up a plaintiff or two and went to a federal judge.

        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 Detroit, and bus the black kids into their towns. What the heck! We're only talking thirty or forty miles. The judge liked the idea. And he so ruled.

        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 Viking Court’s fondness for forced busing. They weren’t anxious to abandon earlier Court positions, but they didn’t want to extend them any further. Therefore, only a small majority of Viking Court holdovers could be expected to sustain the district court. Part of that majority got cold feet.

        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 Detroit.

        The Court needed to give a reason. It said that no one had proved the suburban districts shared the blame for Detroit’s segregated schools. Of course


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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, Michigan shared the blame for the segregation in Detroit. So the entire state was fair game for a judge-imposed remedy. In this case, the Supreme Court backed off from the usual logic. Its real reason was fear of a bloody nose.3 The people take a lot of abuse from judges, but you can only push them so far. As you may recall from Chapter 3, this point was made by Machiavelli.

        We now come to Kansas City. Before long a federal judge in Missouri, named Russell Clark, had to deal with a case very similar to the one in Detroit. There were so few Whites left in Kansas City that all its public schools had become segregated.4

         About 1977, “civil-rights” lawyers sued in Judge Clark's court. They wanted him to order the State of Missouri to merge the Kansas City district with the suburban districts. Then he could order the buses to roll. Russell had to refuse. The Supreme Court had ruled that out by its Detroit precedent.

        But then somebody thought of a new scheme. The judge could reverse white flight by blowing really big bucks on the Kansas City schools. Judge Clark went along with that. He ordered the people of Kansas City to double the property tax. He also ordered a very big hit on the state treasury. If he spent most of the money in Missouri on the Kansas City schools, the folks out in the suburbs would have to play ball.

        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, Kansas City, with 9 percent of the state’s public school students, got 44 percent of state school funding. By 1998, the State of Missouri had spent about $3 billion for “schools that are Taj Mahals” . . . but also “about half-empty.”5

        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 Kansas City students were still abysmal. Dropout rates were at 55 percent and rising. Nevertheless, Judge Clark still had faith in the bureaucrats. He was quoted as believing that it would only take another decade or so.7











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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, Florida had the best team in baseball.

        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 America’s best-loved sport is integrated. By 1954, the year the Supreme Court decided Brown v. Topeka, major league baseball had long since ended its exclusion of Blacks. In that year it had forty-nine black players.2

        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.

        America’s armed forces have long led the nation’s progress in racial equity. All three services have a higher percentage of Blacks than does the public at large. There are many thousands of Blacks commanding Whites. By the mid 1990's, 7 percent of the Army’s Generals, 11 percent of its commissioned officers, and about 35 percent of its sergeants were black.4

        In February 1954, a young black man named Colin Powell graduated from Morris High School in the South Bronx. That was a couple of months before the Supreme Court decided Brown v. Topeka.5 Powell spent his entire career in the U. S. Army. He found bigots there, but he also found a system that allowed him to succeed. About forty years later, Colin Powell retired as Chairman of the Joint Chiefs of Staff. He had reached the highest and most visible position in the U. S. Armed Forces.

        Colin Powell, like Jackie Robinson, gave a class performance in a pioneering role. Whites in America responded to Powell in the same way they had responded to Robinson. It appeared, in 1995 and 1996, that Colin Powell could have become U. S. President in the coming election, had he chose to run. Leaders of both major parties offered him support. Republicans begged him to compete for the nomination of their party. According to public opinion polls, he could have easily beaten all of the other contenders in the 1996 election.

        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 U. S. public schools. In a typical year, federal judges ran school systems containing at least 20 percent of the forty-five million. That works out to about nine million victims each year.6

        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 Kansas City, federal judges wasted about three billion dollars over a decade or two. Kansas City was not typical. Its program wasted a very large sum of money in a short time. The Cleveland numbers would provide a more reliable basis for a national estimate. You will recall that the billion dollars wasted in Cleveland amounted to about $5000 for every student that passed through the system. Let's assume that the per-student-cost in Cleveland was not far from average for the nation as a whole.

        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. New Jersey, for example, adopted that language in 1947. West Virginia did it in 1872, and Minnesota did it all the way back in 1857.2 That language is the basis of many, perhaps most, of the school funding equity suits.

        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 per-pupil U. S. public school costs increased about 35 fold. During that same time frame, U. S. adult literacy rates at best stagnated. A century of history says more money does not improve public school results. The details make rather tedious reading. So I placed them back in the Notes and Citations section.4

       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 U. S. public schools more than doubled from $2,150 to $4,622. Both figures are in constant 1990 dollars. Twice as much money seems to have led to worse, rather than better, results.7

       Please indulge me while I make the point yet a fifth way. Numerous studies have compared U. S. public schools with Catholic parochial schools on the basis of cost and performance. The public schools always come out costing a lot more and getting much worse results. This is true even when both systems are schooling poor, minority children in the same parts of town. The results of one such study are summarized back in the Notes and Citations section.8


        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. Warren was a man who knew how to get the job done. Before long, most of the state’s dog tracks and slot machine parlors were out of business.

        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 Long Beach. They brought customers out in water taxis. A California appeals court had ruled they were outside state waters, so they were beyond Earl’s reach. The biggest and most luxurious, the “Rex,” was owned by a man named Tony Cornero.

        Warren sent a message warning Cornero to get his business further away from California, otherwise he would lose it. In view of the state appeals court ruling, Tony declined. Warren then placed an illegal tap on Tony’s home phone, but the tap didn’t get anything useful. So Earl resorted to a Viking technique. He assembled a fleet of state owned boats and rented water taxis. Then his men attacked all four ships. Tony Cornero, on the Rex, held Warren’s men off, for a while, with a high pressure fire hose. He called them “pirates.” Tony probably didn’t know that Viking was the Norse word for pirate.1

        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 California waters. They were more than three miles from shore. But the three-mile limit had to be measured from an imaginary line along the outside edge of Santa Monica Bay.1 About fifteen years later, in an offshore oil case, the Warren Court quietly reversed that ruling.2

        Being a law-and-order guy didn’t have much appeal in liberal Washington in the 1960's. Earl Warren was at heart a politician. So he wanted to be in tune with the times. Besides, most of his colleagues on the Supreme Court were liberals. They would only follow him to the left. If he wanted to be their leader, that was the direction in which he had to go. In the 1960's, protecting criminals was quite fashionable on the left.

        So the Warren Court went into the business of protecting criminals. Between 1960 and 1965 the Court heard 75 cases in which criminals claimed


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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 Warren’s time, defense lawyers have used the tainted evidence rule to create a bewildering variety of loopholes for their mobster clients. Let's say that a traffic cop stops a van that is speeding or has a burned out tail light. He walks over to talk to the driver. The cop has seen a lot of shifty characters in his time. The driver acts like he’s one of them. He keeps glancing over his shoulder and is very evasive in his answers. The cop looks in the back of the van and finds a dead body.

        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 Warren Court changed all that. By the time it was finished, courts existed to make work for ever growing legions of lawyers. Finding out 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 Viking Court, an awful lot of evidence was "tainted." The brand-new fourth amendment in the bogus constitution made it hard to find any other kind.

        Next the Viking Court rewrote the Fifth Amendment which says: "No person . . . shall be compelled . . . to be a witness against himself.”

        Surely you’ve heard about "Miranda warnings." Back in the early 1960's, somebody raped a woman in Phoenix and stole her car. About two weeks later, the police found it parked in front of Ernesto Miranda's home. Ernesto fit the description of the rapist, so they put him in a lineup. The victim pointed him out. Ernesto had a prior arrest for rape, and half a dozen arrests for peeking in ladies’ windows.7

        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 Warren Court said that was enough to violate its brand new, revised fifth amendment.8

        The Viking Court then wrote "Miranda warnings" into the bogus constitution. The final opinion was a sixty-one-page manual for cops to use when talking to suspects.9 If that isn’t legislation, what is?

        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. Warren’s “Viking ancestors” would be very proud.

        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.” Warren’s men picked up a suspect named Frank Connor. They then snuck him off to a hotel room while they “questioned” him. Warren refused to allow Connor to see his lawyer. If he wanted a lawyer nosing around, he would have taken Frank to jail, not a hotel. Frank Connor had some health problems and Warren’s men didn’t allow him to get much


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sleep. So he knuckled under and signed. Warren used his confession to convict several other men. The case did great things for Earl’s career.12


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 



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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 Burger Court nurtured the mutants and killed off a few more victims’ rights. By the time the Warren and Burger Courts were through, victims’ rights were just about extinct.

        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 Viking Court started amending the bogus constitution to protect criminals. By 1968, when Richard Nixon was elected President, criminals were running amok. This made the voters quite unhappy. That’s partly why they elected Nixon. He had promised to appoint judges who were not soft on crime. Nixon tried to deliver, but he had to get consent for his nominees from a Democratic Senate. He also made some unwise appointments. And he never got to appoint a Supreme court majority. So crime rates


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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 Warren Court started making up new rules for criminal trials about 1960. By 1970 it had tipped the odds in favor of the crooks. One can see this by looking at the data on crime rates. Between 1960 and 1970, the number of murders each year almost doubled. The number of rapes more than doubled. The number of property crimes (burglary, car theft etc.) almost tripled.

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 Warren Court made all those bogus new rules. Victims reported about fourteen million serious crimes to the police in 1994. That number includes violent and non-violent crimes.

        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 Warren Court’s new rules, committed a lot more crimes than he would have committed in jail. That raised the crime rate.

        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 Viking Court’s criminal-friendly rules. So it became easier to put crooks in jail. You can read about the trimming in the book by Lazarus.10

        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 Viking Court must have meant it only as a suggestion. It was clear from its written opinion that the 4th circuit majority was confident the current Supreme Court would back it up.12

        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 Warren Court rulings on police morale alone can explain a large increase in crime rates.

        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 America, about 150 cops are killed in the line of duty. You never hear of a judge getting killed in the line of duty.15

        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 America has three branches of government, legislative, executive, and judicial. You may also have learned about the sacred principle of “separation of powers.” One branch of government is not allowed to intrude on the functions of the other two. Our founders considered that a very serious offense. You may recall the quote by James Madison back in Chapter 9. He called one branch’s usurping the powers of all three “the very definition of tyranny.” In this chapter we’re going to have a look at the results of some tyranny.

        The Warren Court’s “evolution” of the Bill of Rights, which began around 1960, soon led to a big rise in crime rates. So existing prisons started to get a little crowded. Beginning about 1965, lawyers from the judicial usurpation industry sued almost every state in the country. They claimed that crowded state prisons violated the Eighth Amendment. Everyone in those prisons was suffering cruel and unusual punishment.

        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 District of Columbia. In twelve states, a federal judge took over running the whole prison system. He exercised executive, legislative, and judicial power.1

        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 Oklahoma claimed that the warden abused his religious freedom. He didn’t say what the warden did wrong. Everything about the inmate’s religion was secret. So he couldn't divulge which prison rules were at fault.

       A convicted rapist sued the State of New York. He claimed that a prison haircut infringed his rights. It was so bad that he suffered chest pains and lost sleep. He demanded $25,000 in damages.

       A fellow in a Nevada prison sued over peanut butter. He had ordered two jars of chunky. The guards brought him one chunky and one smooth. The article didn't say whether the inmate cut back on his tip.


        According to the Wall Street Journal, a New York inmate filed a civil rights lawsuit. He demanded a million dollars in damages because the jailors served him melted ice cream.3 This same issue mentioned an Oklahoma jailbird who claimed that he was the victim of cruel and unusual punishment. He had to listen to country and western music.

        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 New Jersey, was found to have nude pinups all over the place. Now prisons are supposed to try to reform the bad actors. And it didn’t seem that nude pinups would help sexual predators to reform. So New Jersey legislators tried to outlaw the practice. However, a federal judge said the dirty pictures had to remain. The sexual predators had a constitutional right to keep them.4

       An inmate in Florida was swindling lonely women. The state had convicted him of nine murders about a decade earlier. While waiting around on death row he placed lonely heart ads in tabloids. He conned the ladies who answered into sending him money. A prison spokesman claimed they could do nothing about it. He was within his rights under the “Constitution.”5

       Even death row is no longer cruel and unusual. In the state prison in Mansfield, Ohio, death row inmates have a fair amount of freedom. They showed their gratitude by overpowering three guards, taking their keys,


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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 Illinois prison. The press reported, in 1996, that an inmate named Larry was running a large Chicago gang from his prison cell. They had organized the gang like a Fortune 500 company. Larry was Chairman of the Board.7 The people in charge of Illinois prisons said that gangs "run all maximum security facilities in the State." They said that wardens could not regain control by locking up the gang leaders in solitary. That would be cruel and unusual.8

        In 1996, a prison counselor was murdered at the Lima Correctional Institution, a prison in Ohio. The victim was well liked. They had just named her employee of the month. At last report the Ohio State Police were still trying to find the murder weapon. According to the Cleveland Plain Dealer, the 2000 inmates pretty much had the run of the place.9



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 San Antonio paper had three in a single week.

        A federal judge in Texas ruled that Texas prisons were still too cruel and unusual to escape judicial control.10 A federal court had taken over the prisons 16 years earlier. The 1999 ruling said that the guards were using excessive force to control the inmates and were also putting too many crooks in solitary confinement for too long. It also complained that "more vulnerable inmates are


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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 Texas protect “more vulnerable” inmates from rape, abuse, etc. without using force and solitary confinement on the “more powerful ones” as needed?

       Were “more vulnerable” inmates being “raped, beaten, owned, and sold” by “more powerful” ones, before federal judges took over Texas prisons in 1983?


        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 Texas state official responsible for tracking prison gangs testified that “prison gangs germinated during the early 1980's” due to “sweeping court ordered reforms.”11 I guess that provides a partial answer to the second question.

















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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. America executes about one convicted murderer for every 1000 murders. The most deserving murderers don’t even get convicted, much less executed. Money and politics play too big a role.1

        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 1958 Warren Court opinion contained a delayed action stink bomb called the “evolving standards of decency” doctrine. I’m going to use a shorter name. I’ll call it the evolving standards scam. It’s described a page or two below.4

        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 U. S. had only three executions. The habeas corpus scam had made the death penalty “unusual.”

        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 Viking Court hadn’t used the evolving standards scam to outlaw the death penalty in 1958? In 1958, standards clearly hadn't evolved far enough. Most of the states had death penalty laws at that time. Some of those laws were fairly new. Polls showed that most of the public favored keeping them. The Viking Court was getting a lot of flak over its recent brazen power grabs. Even a Great Prince of Usurpation can't afford to make almost the whole country mad at the same time.4 So the members of the Viking Court figured they would let standards continue to evolve for a while.

        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 United States. He had run on a platform that included a promise to reform the federal courts. Nixon said he would appoint judges who would "strictly construe" the Constitution rather than "judicial activists" who would rewrite it. Somehow it didn’t work out as he had promised. Most of his Supreme Court appointees "married the natives" as the British Colonial Office used to say.

        Nixon appointed four members of the Burger Court which sat from 1969 through 1986. Three of the four fell right in line with renegades left over from the Warren Court. Look back at the figure depicting numbers of landmark Supreme Court decisions in Chapter 9. The Burger Court cranked out bogus amendments like jelly beans.

        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 Burger Court made only an inept effort to hide that fact. Legal scholars, therefore, reacted with distaste.2

        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 America adopted the Bill of Rights, the law prohibited abortion after “quickening” (the mother’s first perception of the physical presence of a living fetus within her). In our founders’ society, the elderly relied on their adult children for support. High infant and child mortality rates placed a premium on large families as did our agrarian economy. Family farms relied on the labor of every available person.4

        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. Ohio toughened its anti abortion laws in 1867. The entire state senate voted yes. Illinois toughened its laws in 1872. The combined vote in both houses was 147 to one. Minnesota passed such a law in 1873. It passed by 55-1 in that state's House of Representatives. It passed by 37-0 in the state Senate. Vermont, Maryland, and New York also passed anti abortion laws in 1867 and 1868.

        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 Warren Court had placed in the bogus constitution in 1965. It was written to strike down a Connecticut law restricting the sale of birth control devices.

        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. United States. They certainly remembered what they had said only three years earlier.

        After the Burger Court announced the Roe decision, the State of Texas filed a petition for a rehearing. That petition compared the ruling to the infamous Dred Scott decision of 1857. We discussed the case back in Chapter 5. The main issue concerned whether a black man named Dred Scott was a slave or a free man. The Taney Court ruled that he was still a slave.




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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 U.S. has bitter conflict over abortion. The U.S. is the only western country in which judges make abortion policy.12

        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 America’s liberal elite. So members of the Burger Court got a lot of nice strokes for it.

        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 Dudley. Let’s say the city was Chicago. This is a made-up story anyway, and Chicago will do as well as anyplace else. Actually, Chicago will do even better than most places. It’s been the locale for many great corrupt judge stories.1

        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 Dudley’s courtroom. Several days prior to his court date, he hired Gwendolyn to visit Dudley in his private chambers with his (the drug pusher’s) compliments.

        Dudley accepted the gift. And, on the day of the trial, he gave the drug pusher a free pass. I assume you agree that Dudley had accepted a bribe. The bribe was sexual rather than monetary. But it was a bribe nonetheless.

        Now let’s add a new wrinkle to the story. Dudley didn’t avail himself of Gwendolyn’s usual services. He had a foot fetish, and all he did with Gwendolyn was paint her toenails. Then he gratefully threw out the case against the crook who had sent her. Dudley still had taken a bribe, right?

        Let’s change the story one more time. This time there was no hooker named Gwendolyn. However, Dudley had a wife named Minerva. She was a nag and a shrill. Every time Dudley threw a drug pusher in jail, she made him listen to a long, painful tirade about how unjust it was to lock up such a fine, upstanding, businessman. His only offense was to sell a product that his customers demanded.

        Whenever Dudley let one off, she was charming and sweet. And she prepared his favorite dinner. After a while, Dudley let off every drug pusher who got hauled into his court. Wouldn’t you still agree that he was acting corruptly?

        The payoff Dudley received when he appeased Minerva was a lot like the psychic payoff that motivates Supreme Court justices who vote to evolve the


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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 Burger Court may have had a less obvious, but even more corrupt, motive for Roe v. Wade. Some of them may have been accessories to illegal abortions before they were handed a chance to rule that their crimes were not really crimes.

        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 Burger Court. I don't want to stretch the facts. I’d rather err on the low side. So I'm going with one-in-five. One abortion for every five conceptions means about one abortion for every four live births. That will not be exact. Some pregnancies miscarry.2

        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 Burger Court.

        It’s not hard to document that America averaged slightly over two live births, during the period in question, for each male who passed through his sexually procreative years. It takes that many to maintain a stable or growing population. So we had about one abortion for every four live births and at least two live births for every male who had reached age 55 or so.

        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 U. S. had experienced about 4 ½ criminal abortions during their procreative years. So what? What do old men have to do with abortions?




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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 Burger Court, therefore, were much more likely than the average person their age to have an illegal abortion skeleton in their family closet.

        Now put yourself in their place. You are a high priest of the Constitution. You are a pure and trusted symbol of America's devotion to the law. But you have a secret crime in your family’s past. Maybe you were an accessory to the crime. Maybe it happened more than once.

        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 1973 Burger Court voted for Harry's abortion. Perhaps most of the seven voted, at least partly, to erase a crime in their own past. Of course, we have no way of knowing for sure. And we certainly have no way of knowing which ones.









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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 Dudley. The police suspect Dudley in a recent murder case. Somebody shot and killed a rival dope dealer.

        You’ve learned that Gwendolyn lied to the police to give Dudley an alibi. She said they were both having dinner at your home during the entire evening of the murder. Now the cops are coming around to question you. What are you going to do? If you don’t back up your sister, she’ll go to jail for obstructing justice. If you do, you’ll be guilty too.

        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, LIBERTY, AND THE PURSUIT OF HAPPINESS       

        On March 6, 1996, the Ninth U. S. Court of Appeals struck down Washington State's ban on doctor-assisted suicide. The Second Circuit struck down a similar New York State law the same year. The Ninth Circuit judges said that their ruling followed from Roe v. Wade. They also said that the assisted suicide ban violated our right to life, liberty, and the pursuit of happiness. Maybe I could understand liberty and even the pursuit of happiness. It depends on one's attitude. But life? Do appeals court judges believe in an afterlife? Maybe I was wrong about Acluism.2

        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 U. S. appeals court judges were trained in the better law schools. They are quite capable of reading the bogus constitution, and they possess a high order of logical skills. The logic of this case was straightforward and obvious.

        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. Marshall taught them to always get in bed with what Machiavelli called the nobility. They could con the people. But the nobility would pursue a single-minded war against them if they failed to play ball with it. Exactly who comprised the nobility would change from time to time. But a prince could always recognize them. They were the groups containing the small minority who schemed to control access to government decision makers.

        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 U. S. system of government has encouraged the various elite factions to form two competing alliances. One alliance has usually espoused ‘conservative,’ and one ‘liberal’ principles. For purposes of our discussion, ‘conservatives’ are inclined to defend traditional values and practices. ‘Liberals’ are inclined to be impatient with them.

        For America’s first 150 years, or so, the Supreme Court usually allied itself with conservative factions. In a way, this was consistent with the design of our founders. Federal judges are appointed for life and are very difficult to remove. Our founders expected them to defend the Constitution and the law against the impulses of temporary majorities. Our founders wanted the law to change only in response to the desires of majorities that were stable enough to revise it through legitimate constitutional processes.

        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, America experienced a revolution. An elite faction, led by Franklin D. Roosevelt, gained the loyalty of most of the people and kept it for a generation. Roosevelt got to appoint an all new Supreme Court. And he appointed men with liberal leanings.

        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 America had won World War II. The people had boundless faith in the powers of the federal government. They had been shocked to learn of the holocaust and became quite sensitive to civil rights issues. Liberal ideas were in ascendance. Many people became impatient for the utopia that they thought the federal government could bring. The Supreme Court became impatient too.



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 Warren Court showed that lobbying judges was a good way to make things happen, tens of thousands of liberals went to law school.

        Between 1962 and 1972, the number of law students doubled. Many of them were draft dodgers trying to keep out of the Viet Nam war. The law schools welcomed them, modifying their admission criteria to make things easier for mediocre students with politically correct attitudes. Many graduates of those days are now judges.2

        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. Washington real estate values soared.

        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 America.

        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 Jefferson’s ideas. They were New Federalists. Like the old Federalists, they did not trust the “the great beast” with any real say in what our government did. They schemed to arrange that judges make most of the big decisions.

        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 U. S. economy. We had a large judicial usurpation industry to support. Legislation by courts is its life blood.

        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 Jefferson’s answer to a claim that it was a bad idea for the people to amend the Constitution. Governing elites, even then, wanted to keep the people out of the act. They wanted judges to have a monopoly on real power. Jefferson trusted the people rather than the judges.

        For the most part, Jefferson lost that argument and the special interests won. However, they never feel quite secure. They know that lawless judges become more brazen each decade. They don’t know how long they can keep the people from getting wise. That gives them cause for much concern.

        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 middle America. The judges have always made it up. But, they go on to say, it's a


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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 United States. Most of them are non-interpretivists.3











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CHAPTER 31

ASYLUM ON THE POTOMAC




        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. Jefferson used very similar words to make the point that the people should amend the Constitution, as needed, to adapt it to changing times. Otherwise, the judges would be likely to amend it through usurpation. Jefferson's statement on the matter is below.2

        "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 Jefferson had in mind were judges.

        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. Jefferson held that the people at large should elect those who make the big decisions concerning the future of our society. He thought that our input would lead to better decisions. He also believed that this was our God given right.

        Hamilton believed that we could not be trusted with that kind of power. Like other Federalists, he thought that the "wise, the rich, and the good" should make all the big decisions. And they didn't need any input from the likes of us. He even proposed that America have a king.

        Advocates of Jefferson's ideas prevailed, on the major issues, when our founders drafted the Constitution. It began with the phrase "We the People," making clear that all legitimate power came from us. Government leaders, including judges, were our employees, not our masters. We had the right to elect the folks who made the laws. The Constitution directed that judges merely apply them to “cases” and “controversies” based on a sincere effort to understand what we had intended them to mean.

        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 Taney Court. Our judiciary just laid low for a while. Then it used the Fourteenth Amendment to perpetrate a series of outrageous new frauds.

        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 Warren Court’s perverse rulings. However, they did this only in cases where it was not too visible. They were not willing to trifle with stare decisis.

        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 United States, and the government . . . will become as venal and oppressive as the government from which we separated."2

        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 America in startling new directions. Look at the big leaps the Warren Court took. The imagination of lawyers has no limit. And anything that a lawyer can imagine, the judges can find in their bogus constitution.



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 America will end its slide toward complete loss of self government?



OUR “PROCEDURAL REPUBLIC”


        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 Clinton presidency.7 That’s got to shake your confidence in Thomas Jefferson’s ideals. Maybe we’ve finally become Alexander Hamilton’s “great beast.” Maybe we’ll be better off if courts make all the big decisions.

        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 America are quietly writing their delusions into 50 bogus state constitutions.

        During the last decade, the U. S. Supreme Court has been a bit more restrained. However, Ronald Reagan’s appointees are nearing retirement age. Clinton’s successor will get to replace most of them including Chief Justice Rehnquist.

        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 United States . . .”






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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 National Academy publication by Kennedy and others. See the Bibliography.

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 Jefferson’s party called themselves both “Democrats” and “Republicans.” Members of the party led by Adams and Hamilton called themselves “Federalists.” Our modern Democratic vs. Republican party alignment began in Lincoln’s time.

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 Chicago judge threatening to jail children was taken from the Cleveland Plain Dealer, Feb. 6, 1996. The piece was written by Lindsey Tanner of the AP.

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. United States, 1988.

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 two Warren Court contempt-of-court quotes. The cases were Unites States v. Barnett, 1964, and Green v. United States, 1958. I took the civil rights marcher story from Levinson, 1988 page 45. The case was Walker v. City of Birmingham.

11. Spano v. New York, 1959. The story is summarized in Huston, page 165.

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 Texas v. Johnson, 1989.

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 Mentor edition of The Prince has a lengthy introduction by Christian Gauss, the book’s editor. I took my account of the book’s history mainly from that introduction.

6. The "wise, rich" etc. quote is from McCloskey, page 50.

7. Hamilton's "king" proposal was mentioned in Chidsey, page 34.

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 Marshall quote is from Hobson, page 137.





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NOTES FOR CHAPTER 4


1. The story of the Texas ruling was taken from Schwartz, 1987, page xv. His note cites Phyler v. Doe, 1981. Also see Levinson, 1988, page 202.

2. In 1996, the Rehnquist Court surprised everyone by breathing a bit of life back into the Eleventh Amendment. In Seminole Tribe v. Florida a majority ruled that it meant just about what it said. The Court did, however, retain a very big loophole. It claimed the Fourteenth Amendment created an exception for "civil rights" cases. The judges get to decide what is, and isn’t, a civil rights case. That seems like a pretty big loophole. You’ll see in Chapter 6 that curbing, rather than enlarging, the powers of renegade judges was a major goal of the framers of the Fourteenth Amendment.

    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 Warren, Volume I, Chapter Five.

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. Hamilton was speaking to the New York Assembly in February 1787. For other comments on the historical meaning of “due process,” see Black, 1968, Chapter II, Berger, 1977, pages 193-200, or Rodell, 1957, pages 56-58.

3. See Fehrenbacher, Chapters 21-23, for an account of the history of the Dred Scott decision. The bias of the Taney Court majority is described in Swisher, Chapters 23 and 24; Berger, 1977, pages 222-3; and McCloskey, pages 59-66.

4. See, for example, Heckman, pages 74 and 85.

5. Lincoln is quoted by Senator Jenner during the August 20, 1958 debates on the Jenner-Butler Bill. See the 1958 Congressional Record ‒ Senate, page 18645.

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


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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 Virginia can be found in Berger on page 221. You can (early 1999) read the whole decision, as well as many other historic Supreme Court decisions, at the 'Lectric Law Library Lawcopedia's web site http://www.lectlaw.com/tcas.htm.

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. Warren, Volume III, page 174.

9. Warren, Volume III, page 181.

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 Occidental College in Los Angeles. The passage in quote marks is from Dreier’s article. I later found two related papers on the Internet.





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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 Georgia Association of Historians, vol. 15 (1994), pp. 49-63.


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. Hoover was just a fall guy.

4. The Jackson quote is from Berger, 1977, page 2.

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. “America’s Wealth Pyramid,” Washing Post, Jan. 6, 1999, Page A24.

Hinderaker, John H. and Scott W. Johnson. “The Truth About Income Inequality,” Center of the American Experiment, Minneapolis Minnesota, December 1995

Shmavlonian, Nadya. “Staying On Target,” Washington Post, Dec. 13,


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1998, Outlook Section.

Wolff, Edward N. “Top Heavy: A Study of the Increasing Inequality of Wealth in America.” New York: Twentieth Century Fund, 1995.

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 Warren’s “Viking genes” might explain his “venturesome spirit.” Rodell, page 324, refers to Earl Warren as looking “like a friendly Viking.”

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 Normans’ Viking origins are described in Wright, Vol. 9 and 10, page 2439, and Vol. 3 and 4, pages 680-682.

5. I found a description of the Marble Palace, including the names of the eighteen figures, in Witt, page 781. The courtroom dimensions are 82 feet by 91 feet by 44 feet. A typical middle class suburban house is taken as 2000 square feet with 8 foot ceilings.

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. Warren's opposition to the release of the imprisoned Japanese-Americans is discussed in Cray, pages 157-59, Huston, pages 59ff, and McKeever, page 135. The Japanese-Americans’ World War II service in our military was described in the letter by Grant Ichikawa.

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 New York and Nevada, in 1913, from data on page 199 of Flatt, 1983.



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 Washington’s farewell speech can be found in Kaufman, et. al., pages 15-30. You can also find it on the Internet at web sites operated by The University of Virginia and the University of Groningen. Go to either http:/www.virginia.edu/gwpapers/farewell/fwatran.html or http://odur.let.rug.nl/~usa/P/gw1/speeches/gwfar.htm.

4. Both quotes can be found in Madison’s Federalist Number 47. Madison borrowed the second from Montesque. Hamilton, in his Federalist Number 78, repeated the same Montesque quote.




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5. Jefferson’s 1821 letter to Charles Hammond can be found in Lipscomb, Vol. 15, pp 331-332. The excerpt presented here can also be found in Konefsky on page 246.

6. The Jackson quote is from the message accompanying his July 10, 1832 veto of a bill extending the Charter of The Bank of the United States. He thought the Bank was a vehicle which the moneyed class used to cheat and oppress working people. And, notwithstanding John Marshall’s opinion to the contrary, he thought it was unconstitutional. Excerpts from the message, along with an account of the political struggle which followed the veto, can be found on page 40 in Brown.

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, Brandeis University, Fall 1997.

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 Marshall by Justice Joseph Story. He attributes the second (laws that existed before society) to Marshall’s opinion in Sturges vs. Crowninshield, 1819.

6. Jupiter's thunderbolts are mentioned in Eliade (page 78).

7. The Oliver Wendell Holmes quote is from Glendon, 1994, page 186.




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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 ‘Temple of Karnak’ quote. The same quote can be found on page 126 in Harrell and Anderson. Neither source mentioned the name of the justice who made the comment. The original temple at Karnak is in Egypt. It was built about 3500 years ago to honor the sun god Amon-Ree. It was the largest place of worship in ancient Egypt. I found an article describing it in the Corpus Christi Caller Times, September 28, 1997, page D-1. The piece was written by Kingsley Guy. Later on I did an Internet search on the term “Temple of Karnak.” As I recall, I got about two thousand hits.

3. As far as I know, Roosevelt never accused the Supreme Court of causing the depression. Maybe he didn’t understand that it had. Besides, such a claim would have been politically foolish. He was getting great political benefit out of blaming Republican President Herbert Hoover. Furthermore, destroying the power of the Supreme Court would not really have served his long range agenda. He only wanted to change its current personnel and policies.

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. Connecticut, 1940 and Everson v. Board of Education, 1947.

        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 Hawaii passed an initiative overturning their Supreme Court’s ruling in November, 1998. See the piece by Sam Howe Verhovek in the New York Times, November 5, 1998.

11. I first read about the Colorado ruling in USA Today, May 21, 1997, page 2A. The name of the writer was Maria Goodavage. This case has been discussed extensively in several essays collected in the book by Neuhaus et. al.

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, Hollywood held a breast beating conference to debate the topic, "Guns Don't Kill People Writers Do." Many of the meetings’ participants admitted that pervasive youth violence was due at least partly to violent porn. "We in Hollywood are Dr. Frankenstein right now," said (one industry participant). "We think we are so clever and so brilliant and that we have these great creations we want to give to the world, but we have created a monster. I'm not saying it's all our fault. But in the equation of lethal violence in schools, I say we are a factor." See “Hollywood examines its soul,” by Claudia Puig, USA Today, June 7, 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 Courtland Milloy, Washington Post, page C01, Feb. 21, 1999.

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. Washington, D.C. public school performance data came from American Legislative Exchange Council, “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.




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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 Cleveland student performance numbers were taken from The Cleveland Plain Dealer, April 7, 1996; Columnist Chris Sheridan quoted Richard Boyd, State-appointed acting school superintendent.

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 Cleveland schools. This number is not likely to be off by more than fifteen or 20 percent. A much larger number of children will have spent some time in the system.

        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 Detroit case was discussed in Woodward, pages 334-337 and 415 and in Graglia, pages 241-256.

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 Kansas City case from the 1996 article by Paul Ciotti. Check the Bibliography.

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. Missouri.



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 New Jersey ruling. It was quoted in a May 15, 1997-piece in the New York Times.

        ● “Haves in Revolt Against ‘Have Nots’ in Vermont Over School Taxes,” by Carey Goldberg, New York Times, December 19, 1997.

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 American Heritage College Dictionary, Third Edition, Houghton Mifflin, 1993.

      - The Oxford Dictionary and Thesaurus, American Edition, Oxford University Press, 1996.

      - The Oxford English Dictionary, Second Edition, Volume V, Clarendon Press, 1989. This dictionary did not make the connection of efficiency with minimum waste and/or cost quite so clear. Its first definition of “efficient” was more or less synonymous with “causative.”

4. According to the U. S. census, America’s adult literacy rate, way back in 1840, varied from 99 percent in Maine and Vermont to 72 percent in North Carolina. It was 94 percent in Ohio and 96 percent in New York and New Jersey (See the table on page 159 of Soltow and Stevens). I wasn’t able to find any numbers on public school costs back in 1840. However, I can tell you that inflation adjusted per-pupil public school cost has increased at least 35 fold since 1890. And it increased at least seven fold between 1940 and 1990 ( I obtained average public school costs in 1890 and 1940 from Figure 3.1 on page 27 in Hanushek, 1994).

    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 District of Columbia as a 51st state. In the 1993 school year the two top spending states were New Jersey, at $9,429 per-pupil, and the District of Columbia, at $8,057. The two lowest spending states were Mississippi and Utah at $3,231 and $3,158 respectively. That year the national average was $5,314.




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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. New Jersey’s graduates ranked 37 out of 51 in SAT test results, not too far from the bottom. The District of Columbia’s ranked all the way down at 49 out of 51. Students in Mississippi and Utah, on the other hand, ranked 13 and 2 respectively.

    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 New York City. The 13 schools in the report’s sample all had mainly poor, minority students.

    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, USA Today, Feb. 17, 1999.

12. Cray, page 461-2.



NOTES FOR CHAPTER 22


1. “Rights of Crime Victims,” Washington Post, June 29, 1998; Page A14

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 Littleton - And Your Town” by Philip Meyer, USA Today, April 22, 1999.

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 Mansfield, Ohio was described in the September 6, 1997 issue of the Cleveland Plain Dealer, page 5-B.

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, San Antonio Express News, March 2, 1999.

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 Villanova Center for Information and Policy. Its address is http://www.law.vill.edu/Fed-Ct/Supreme/Flite/opinions/381US479.htm

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 Cornell University Law School operates an on-line resource at which you can look up any of several hundred historic Supreme court opinions listed according to party name. You can access it at http://www.law.cornell.edu/.

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 United States.

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 Chicago judge scandals.

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 Cornell Law School. Go to (http://supct.law.cornell.edu/supct/cases/name.htm).

2. See USA Today, March 8, 1996.

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 Cornell Law School (see above).

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 Jefferson’s letter to William Plumer, July 21, 1816. I found reference to it in Konefsky, page 160.

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 New Hampshire. The Library of Congress has posted a facsimile of the entire letter on the World Wide Web. You can view it at http://lcweb2.loc.gov/cgi-bin/ampage?col...=r?ammem/mcc:@field(DOCID=

@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


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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 Washington and Jefferson quotes were taken from Huston, page 10, and Konefsky, page 246. As you no doubt recall, you also read them in Chapter 1.

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 Cincinnati, Ohio on September 17, 1859. Lincoln is quoted by Senator Jenner during the debates on the Jenner-Butler Bill on August 20, 1958. See the 1958 Congressional Record-Senate, page 18645.

Note P142: The quote is from Jefferson’s letter to Charles Hammond, August 18, 1821.

Note P154: The quote is from Washington’s farewell address.

 




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Note P158: The quote is from the message accompanying Jackson’s July 10, 1832 veto of a bill extending the Charter of The Bank of the United States. He thought the Bank was a vehicle which the privileged classes used to cheat and oppress working people. And, notwithstanding John Marshall’s opinion to the contrary, he thought it was unconstitutional.

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 Madison’s Federalist Number 47.

Note P184: See, for example, Platt, page 251.

Note P190: I found this Franklin quotation on page 306 of Fitzhenry, a compilation of quotes. I don’t know the context in which Franklin uttered the statement.

Note P218: This also is from the Fireside Chat, March 9, 1937.

Note P238: From Lincoln’s First Inaugural Address, March 4, 1861. See, for example, Lincoln/Van Doren, 1942.










 
 
 
 



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APPENDIX


THE CONSTITUTION OF THE UNITED STATES OF AMERICA



        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 United States, which shall consist of a Senate and House of Representatives.

        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 United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

        Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

        When vacancies happen in the Representation from any state, the


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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 United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

        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 United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.         The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

        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 United States.

        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 United States is tried the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

        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 United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

        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


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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 United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

        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


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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 United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

        To borrow Money on the credit of the United States;

        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 United States;

        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 United States;

        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 Union, suppress Insurrections and repel Invasions;

        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,


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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 United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.

        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


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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 United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

        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 United States, shall be appointed an Elector.

        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 United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and the House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing 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. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse


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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 United States.

        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 United States, or any of them.

        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


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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 United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.



ARTICLE III


        Section 1. The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

        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 United States, shall consist only in levying


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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 United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

        Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.


ARTICLE V


        The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the


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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 United States under this Constitution, as under the Confederation.

        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.






              *                                               *                                                 *







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AMENDMENTS OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA, PROPOSED BY CONGRESS, AND RATIFIED BY THE SEVERAL STATES, PURSUANT TO THE FIFTH ARTICLE OF THE ORIGINAL CONSTITUTION.



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 free State, the right of the people to keep and bear Arms, shall not be infringed.




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


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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 United States, than according to the rules of common law.


   

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]





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        The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.



Amendment XI [1795]


        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.



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


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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 United States.

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 United States, or any place subject to their jurisdiction.

        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 United States and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.

        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,


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remove such disability.

        Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

        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 United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or any previous condition of servitude.

        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 United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

        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.





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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 United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

        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 United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

        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


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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 United States is hereby repealed.

        Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

        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.





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Amendment XXIII [1961]


        Section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

        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 United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

        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


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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.









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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 Union, 78

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. Topeka, 97, 98, 101, 102, 113-115

Burger, Warren, 149

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. Bolton, 84

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

 

 

 

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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. Connecticut, 83, 84, 151, 152, 212

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

Liberty Bell, 36, 195

Lincoln, Abe, 41, 44, 67, 195, 200, 202, 216, 217, 242, 243

Living Constitution, 11, 185, 215

 

 

 

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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. Ohio, 126

Marbury v. Madison, 35, 36

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. Arizona, 131

Missouri Compromise, 39, 40

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

Rehnquist Court, 194

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

 

 

 

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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. United States, 75

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

Taney Court, 32, 39, 40, 46, 47, 152, 186, 195

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

United States Reports, 192

United States v. Seeger, 74, 160

Vacco v. Quill, 213

Victims? Rights, 129

Viking Court, 58, 59, 99, 100, 109, 127, 129, 133, 146

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

Yazoo land fraud, 33

 

 

 

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