Monday, April 17, 2017

Toto for a Day


"Pay no attention to that man behind the curtain!"



This famous line from the perennial classic movie, "The Wizard of Oz", has often been expressed as meaning the people secretly in the background pulling the levers of a hidden machine. Everyone is awestruck by the power and eminence of the "Great Oz", only to discover (after Toto scurries up and pulls the curtain) that the Great Oz is actually a great fraud.

Often in the marbled, grand legal world, the American people huddle and shake like the characters of this story as the court system thunders, "Do not arouse the wrath of the great and powerful Court!"

Only on rare occasions do you find Toto scampering up and, for a brief moment, revealing the truth--that the great and powerful legal system is not a rule of law but a rule of man. The judges are pulling the levers. This Halley's Comet event slipped by quickly across the corner of the legal sky on April 4th in the case, HIVELY v. IVY TECH COMMUNITY COLLEGE OF INDIANA, before disappearing over the legal horizon as quickly as it appeared.

This important Seventh Circuit opinion was about a lesbian who claimed she was denied promotions at this Community College due to her sexual orientation. She sought redress through a statue, a law passed by Congress, a monumental and historic law in fact, Title VII of the Civil Rights Act of 1964. It has been made famous for its prohibition of discrimination on the basis of race in employment but also had other prohibitions. This Act made it unlawful for employers subject to the Act to discriminate on the basis of a person’s “race, color, religion, sex, or national origin."

It was the "sex" part that was at issue. Hively claimed sexual orientation should be included. The problem was the this word has always  been understood to mean male or female. It was understood that way in 1964 and still is today. Indeed, a long series of cased upheld this common understanding but that does not stop the modern legal system. The majority would begin with:

"The question before us is not whether this court can, or
should, 'amend' Title VII to add a new protected category to
the familiar list of 'race, color, religion, sex, or national
origin'. Obviously that lies beyond our power."

They would then spend 21 pages utilizing classic legal doublespeak to obfuscate, obscure and ultimately do exactly that.

None of this, unfortunately, is unusual.

You have to look to the concurring opinion of Judge Richard Posner before you catch a glimpse of Toto at work.


This 78 year old prolific legal writer happens to be long past any illusions of a seat on the Supreme Court. We have all seen the many memes on social media:


Posner is a bit tired of the charade and reaches up, pulling the curtain:

"I join the majority opinion, but I wish to explore
an alternative approach that may be more straightforward...
I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of 'sex discrimination' that the Congress that enacted it would not have accepted. We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963– 965), carrying out their wishes."
This was a brazen admission that the Court was in truth, flat ignoring the Constitutional mandate that it is Congress and not the Court that makes the law:

"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."  
Article I of the US Constitution
The dissent would of course stridently attack this judicial defiance:

"Th[is] result is a statutory amendment courtesy of unelected judges. Judge Posner admits this; he embraces and argues for this conception of judicial power. The majority does not, preferring instead to smuggle in the statutory amendment under cover...Either way, the
result is the same: the circumvention of the legislative process by which the people govern themselves.
When we assume the power to alter the original public meaning of a statute through the process of interpretation, we assume a power that is not ours. The Constitution assigns the power to make and amend statutory law to the elected representatives of the people."

This Toto's reveal hit the bottom of the news feeds for a few hours and then quietly slipped into the dusty legal blogosphere.

Whenever the Great and Powerful Oz's finally decide the issue, you can be certain the curtain will be firmly back in place. Whatever the mighty ones decide, there will be no Toto--they might get noticed--so there will only be what Scalia said back in 2011 in MICHIGAN v. BRYANT :

"Today’s tale . . . is so transparently false that professing to believe it demeans this institution. In its vain attempt to make the incredible plausible, however – or perhaps as an intended second goal – today’s opinion distorts our...jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort."

"Go - before I lose my temper! The Great and Powerful-- Oz -- has spoken!"


Saturday, March 18, 2017

Eternity




"Before the mountains were brought forth,
Or ever You had formed the earth and the world,
Even from everlasting to everlasting

You are God."

-- Psalm 90


Whether a theist or an atheist, you cannot escape eternity. When you go back to the beginning of the universe and peer into the deep, humanity is faced with two logical options with time immemorial--eternally existing energy/matter, or an eternally existing intelligence we call God.

At this point there is no before. 

There is only always.

Which of these two is true?


As Thomas Jefferson grew gray, he wrote his old friend John Adams and answered that question:
"In every hypothesis of Cosmogony you must admit an eternal pre-existence of something...
They [atheists] say then that it is more simple to believe at once in the eternal pre-existence of the world, as it is now going on, and may ever go on by the principle of reproduction which we see and witness, than to believe in the eternal pre-existence of an ulterior cause, or Creator of the world, a being whom we see not, and know not, of whose form substance and mode or place of existence, or of action no sense informs us, no power of the mind enables us to delineate or comprehend.

On the contrary I hold (without appeal to revelation) that when we take a view of the universe, in its parts general or particular, it is impossible for the human mind not to perceive and feel a conviction of design, consummate skill, and indefinite power in every atom of its composition.
The movements of the heavenly bodies, so exactly held in their course by the balance of centrifugal and centripetal forces, the structure of our earth itself, with its distribution of lands, waters, and atmosphere, animal and vegetable bodies, examined in all their minutest particles, insects mere atoms of life, yet as perfectly organized as man or mammoth, the mineral substances, their generation and uses, it is impossible I say, for the human mind not to believe that there is, in all this, design, cause and effect, up to an ultimate cause, a fabricator of all things from matter and motion, their preserver and regulator while permitted to exist in their present forms, and their regenerator into new and other forms.

We see, too, evident proofs of the necessity of a superintending power to maintain the universe in it's course and order. Stars, well known, have disappeared, new ones have come into view, comets, in their incalculable courses, may run foul of suns and planets and require renovation under other laws; certain races of animals are become extinct; and were there is no restoring power, all existences might extinguish successively, one by one, until all should be reduced to a shapeless chaos.
So irresistible are these evidences of an intelligent and powerful Agent that, of the infinite numbers of men who have existed thro' all time, they have believed, in the proportion of a million at least to [one], in the hypothesis of an eternal pre-existence of a Creator, rather than in that of a self-existent universe."
Jefferson to Adams April 11, 1823 



"God has put eternity into man's heart."

-- Ecclesiastes 3:11



Saturday, February 4, 2017

Sacred




 Set apart. Holy.

Is the United States Constitution sacred? 

In a civil sense, the United States Constitution is indeed sacred. Not because the words are inherently divine, unalterable, and worshipful. Though crafted brilliantly, it was not without fault.

What makes this document sacred is not its articles and subsequent amendments, but the place of these magnificent words in the minds and hearts of its citizens.

In the midst of the struggle for independence and in the year that the Colonies would declare their freedom from the Crown, that great wordsmith Thomas Paine expressed what so many felt when he wrote in Common Sense:
“[that] the world may know, that so far as we approve of monarchy, that in America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.”


When the Constitution would be created eleven years later, the framers would include an oath not as it had been with the mother country — “ I will be faithful and bear true allegiance to Her Majesty …” — but instead an oath to our “King”.
“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."

This formal acknowledgement that the rule of law was supreme only holds power to the extent that hearts and minds believe, accept, and demand it.


When Scalia was before the Senate seeking confirmation to the highest court he said this, echoing the father of the Constitution, Madison (who said the Constitution was just a parchment barrier):
“Because the amendments [Bill of Rights], by themselves, do not do anything. The Russian constitution probably has better, or at least as good guarantees of personal freedom as our document does. "






What is the real difference? why was the Soviet Constitution empty, and the United States Constitution full?







Americans actually believe and demand they be applied to all from the weakest citizen to the strongest. Though we pursue it imperfectly, it is the rule of law (as ultimately expressed in the Constitution), that we do in fact pursue.






So when we have a President who disobeys our law, as Nixon did in the 1970s, "We the people " demand that even the supreme executive must bow the knee to our true king.






Through so many centuries, kings were held as sacred, holy and ruling by the “grace of God” or by His authority. The true revolution of America 230 years ago was that no, the King was not sacred.

The rule of law as ultimately expressed in our Constitution was sacred.



Sunday, October 2, 2016

Seven Sons





All night I've wrestled Jacob's angels
And prayed with Matthew, Luke and John
Struggling to find the words when I face the 
task that comes at the 







 Blood red dawn.



I've buried men before their time
Of alcohol and blackened lung
But how to bury seven of these
Appalachian miners' sons?





They stormed the beaches wave on wave,
they have sailed home to these rocky graves,
to family plots that bear their names.




Tomorrow I'll walk up seven hillsides 
Tremble before my flock on seven hillsides
Seven sorrows, seven sons, seven mothers and every one

Will turn to me for the word of God.




What does this mean?

There I'll stand, good book in hand,
A shepherd to these precious lambs.

What will I say?

What can I say?

The time has come to keep the faith
For others shattered by their loss.
Remind them of the loving God
Whose son, like theirs, paid the cost
To save a sad and wicked world
Through sacrifice, our love is heard.

And I pray that they believe those words.

Tomorrow I'll walk up seven hillsides
Tremble before my flock on seven hillsides
Seven sorrows, seven sons, seven mothers and every one
Will turn to me for the word of God

What does this mean?




Dear God, what does this mean?


Based on lyrics by an unknown sorrow filled author in memory of the 38 West Virginia soldiers who died on D-Day.

Winston Lodge Alexander, McDowell County
James O Boggess, Kanawha County
David E. Casto, Nicholas County
Donald G. Colangelo, Mingo County
Darius W. Crites, Upshur County
Joe DiCiuccio, Raleigh County
Jasper N. Elswick, Roane County
Curtis C. Feathers, Preston County
Jesse M. Hawkins, no home county identified
Elsworth M. Heck, Cabell County
Martin V. Hughes, Kanawha County
Edward L. Jones, Wood County
Alva Jackson Night, Braxton County
Eston C. Kuhn, Barbour County
James D. Lake, Braxton County
Bernard H. Lipscomb, Doddridge County
John Manfredi, Barbour County
Charles H. Manning, Hancock County
Conrad Cecil Mason, Ohio County
John Hobert Mathews, Pocahontas County
Charles G. McCalvin, Logan County
Jamie Edgar McComb, Pocahontas County
John Burk McCue, Monongalia County
Vernon C. McDaniel, Berkeley County
Norman G. Miller, Harrison County
William L. Mollohan, Jr., Kanawha County
Louis F. Nesci, Mineral County
Shirley J. Phillips, Randolph County
John Henry Shreves, Harrison County
William H. Smith, Raleigh County
Floyd Spiker, Preston County
Max L. Stemple, Preston County
Robert Charles Stonebraker, Harrison County
Raymond L. Winebrener, Mason County
Benjamin F. Winn, McDowell County
Benjamin H. Wirtz, Mercer County
Robert L. Wolverton, Randolph County


Monday, September 5, 2016

Still Standing



The recent upheaval concerning the professional football player refusing to stand for the national anthem (Colin Kaepernick) got me thinking about patriotism and America. 


Symbols often have deep meaning for many people across all walks of life.The American flag and national anthem hold such a position for millions of Americans, myself included. To not stand is to itself symbolically say, "NO". 

Not just "no" to particular policies, but really "no" to the country itself

The colors in the flag are themselves symbolic. The red is representative of the "hardiness and valor" in the country or - for many - the blood that has been shed to create and preserve the country.

I continue to have significant issues with and concerns about the future of America, but I have always stood in respect for the blood that has been shed so that even people like Mr. Kaepernick are free to disrespect the country. Blood shed like this from people who -interestingly - did it directly or indirectly to free people of color from slavery:

“The men rose up and dashed eastward through the open fields and along the railroad cut. Color-Sergeant John Hinchcliff, whom a fellow soldier described as “a Swede, six feet two, fair haired, blue eyed,” offered a conspicuous target as he attempted to escape with the flag. He was struck by several bullets and killed instantly. Sergeant William Wybourn, known as “a brave Irish lad,” rushed back and pulled the blood-soaked standard from underneath Hinchcliff’s lifeless body.


Lieutenant Pierce narrated the remarkable conclusion of the incident: “I climbed up the rocky face of the cut, on the south side, and made my way with many of our men across the meadow between the railroad cut and the Chambersburg Pike, crossed the pike into a small peach orchard, and I overtook the colors in the hands of Sergeant William A. Wybourn. Just as I joined him he received a shot, and fell on the colors as if dead. I tried to remove the colors, but he held to them with true Irish grit. I commanded him to let go, and to my surprise he answered, ‘Hold on, I will be up in a minute,’ rolled over and staggered to his feet and carried them all through the fight, and was commissioned for his courage.”

Battle of Gettysburg

Patriotism, though, is something that has to be voluntary, something that has to be freely expressed and not forced. To force patriotism would be for America to cease to be America. Back in 1989, there was a case that reached the Supreme Court, Texas v Johnson. It was about a state law forbidding the burning of the American flag. The Court ruled this law unconstitutional and said these good words.

"The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.
 The remedy to be applied is more speech, not enforced silence.
 And, precisely because it is our flag that is involved, one's response to the flag-burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by -- as one witness here did -- according its remains a respectful burial.
 We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents."

I will stand and be counted among those who still respect the country, 
even with all its imperfections.

I will also stand in defense of Mr. Kaepernick’s right to disrespect the flag and the country it represents and in so doing prove to him that we -and he -

are still free.


Monday, August 1, 2016

Raised Too Right


Summer 2016

"Well, it's down to two candidates now. Hillary or Trump. Not a big fan of Trump, but I hate Hillary."

As I sat comfortably on the couch listening to my dad, I started to think. My father and I have never shied away from respectful disagreements. I continued the conversation.



"I could never vote for her either, but I don't know about Trump, Dad," I said. "He openly advocates for bribery, lies, and treats people despicably. He is a scoundrel and is just plain corrupt."



Dad settled into his favorite chair and sighed. "Sometimes you just have to choose the lesser of two evils. Trump is bad, but he is better than Hillary."

As he continued talking about the evils of Hillary Clinton, I started to stare out the window. My mind wandered back to my childhood...




Summer 1974

On the floor of our postage sized little house, I was playing with my matchbox cars and building a racetrack for my favorite Porsche to race on.  Dad stood up to adjust the rabbit ears on the TV.


"It's official. President Nixon has resigned. The Watergate scandal has finally caught up with the President. After his Vice-President resigned last year due to bribery and extortion charges, the extent of the corruption is now complete in the White House..."
"What a mess," my dad said. " How can we have leaders so crooked? How does this happen?"




Summer 1984


Sitting at the dinner table, Mom passes the bowl of fresh green beans over to me as Dad talks about my brother's 'friends'.  The horrific accident from the prior year has left him debilitated but still resilient. His largest struggle might be the 'friends' who have been making fun of him lately. My dad has zero tolerance for such people.


"You can tell a lot about a person by how he treats people who are handicapped. We don't need those kind of people in our life and anywhere for that matter.

They are the true scum of the earth."


Fall 1984

As my parents are unloading my luggage and getting me settled into my dorm room at a conservative university, I can tell Dad is wanting to sit down and talk. I stop moving and sit.


"I know this school is strict. They are that way for a reason, though. We have talked about the evils of the modern world, what with moral relativism so big. 'It all depends on the situation,' they say. 'Sometimes you have to do the wrong thing if the situation calls for it.' Don't believe it. Don't sacrifice your conscience for such nonsense. I am just a simple man, but I know the truth. These people will help you understand these things even better."


Spring 1987

"Do right! Even if the stars fall, do right!"


The words of the university's founder ring out loudly through the auditorium.




The speaker is playing an old recording of his famous sayings. He continues with another old recording.


"It is never right to do wrong, even to get a chance to do right!" 



Fall 1998


"I can't believe it." my dad growled as we sat around the living room over Thanksgiving watching the Detroit Lions play again.


 "I cannot believe how the country just ignores this whole Lewinsky affair. The man cheats on his wife--in the White House no less-- lies about it, and the country lets him off the hook. Doesn't anybody care any more? What has happened to the morals of this country?! If a man cheats on his wife and lies, what do you think he will do with the country?"


"Christians care," I said.


 "Yeah, but that's it." he quickly countered. "If we stop caring, there will be nothing left to stop the devil."


Summer 2016



"Aren't you listening?" my dad snaps me back to the present.




"I'm sorry," I muttered. "I just don't think I can vote for Trump."


"What? You have to."






"I respect your judgment more than anything, but I just can't."

Grimacing with disappointment, he said,

"Did I somehow raise you wrong?"

I dropped my head thinking,




No, Dad. You raised me too right...




"Train up a child in the way he should go: and when he is old, he will not depart from it."
Proverbs 22:6







Tuesday, July 12, 2016

The Court of Public Opinion




Just how damaging will be the recent email scandal on Hillary Clinton?








Sadly, not likely to be very damaging.


The degradation of the bedrock principle of the rule of law first caught my ire in this situation, but upon reflection something deeper troubles me more.


What troubles me more than the court of law is the court of public opinion. 


FBI Director Comey was presented with a situation in which he could go forward and recommend prosecution (he had strong evidence) but he did not have a bullet proof case. When dealing with high public officials bringing a charge itself would be fatal. By the time the case would run its course, even if not convicted, the candidate would have been destroyed.

So what to do? 



He could have given the Department of Justice the information and they no doubt would have issued a statement making Clinton look like a falsely accused martyr.


No, instead, he quietly and with no advance notice issued the public statement himself. He listed in damning detail the failures of Clinton while noting he did not have the air tight case needed to recommend prosecution.


When Congress erupted in anger and demanded explanations, he promptly appeared the next day and directly answered pointed questions with pointed answers showing to the entire American public the liar and low character person Hillary Clinton is. The firebrand US Representative from South Carolina, Trey Gowdy, provided the pointed questions:


Gowdy: Secretary Clinton said she never sent or received any classified information over her private e-mail, was that true?
Comey: Our investigation found that there was classified information sent.

Gowdy: Secretary Clinton said there was nothing marked classified on her e-mails sent or received. Was that true?

Comey: That's not true. There were a small number of portion markings on I think three of the documents.

Gowdy: Secretary Clinton said "I did not e-mail any classified information to anyone on my e-mail there was no classified material." That is true?

Comey: There was classified information emailed.

Gowdy: Secretary Clinton used one device, was that true?

Comey: She used multiple devices during the four years of her term as Secretary of State.

Gowdy: Secretary Clinton said all work related emails were returned to the State Department. Was that true?

Comey: No. We found work related email, thousands, that were not returned.






Knowing he could not proceed in a court of law he proceeded to the Court of public opinion.


Better to note publicly the failures of the official (as he did) and the public surely will in turn seek out an official with higher personal character.



The problem is that many Americans simply do not care.





Democrats are so committed to the implementation of their desired policies, so committed to the defeat of Donald Trump that they will elect with open eyes a candidate with low personal character.


But before any Republicans can puff out their moral chests and pound it with pharisee-like arrogance, consider:




Which candidate with low personal character are you so committed to that you likewise simply do not care?






Where stands the soul of America?





“Now more than ever before, the people are responsible for the character of their [government]. If that body be ignorant, reckless and corrupt, it is because the people tolerate ignorance, recklessness and corruption. If it be intelligent, brave and pure, it is because the people demand these high qualities to represent them in the [government]…. If the next centennial does not find us a great nation … it will be because those who represent the enterprise, the culture, and the morality of the nation do not aid in controlling the political forces.”



James Garfield