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.