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YOU’RE FIRED

No doubt the most titillating moment in any episode of the popular TV reality show “The Apprentice” came when the host, fabled New York business mogul Donald J. Trump, would look a contestant in the eye, summarize his or her shortcomings and firmly announce, “You’re Fired!”
I suspect that Mr. Trump’s image as a man with sufficient kahoonas to sack an apprentice contributed to the voters’ decision to install him in the White House with a mandate to “Drain the Swamp.”

That said, the President’s request for the resignation of Homeland Security Advisor Michael Flynn, deserves some attention.

Flynn was a very visible supporter of President Trump’s candidacy. Here’s what Wkipedia says about him:

Michael Thomas Flynn (born December 1958)  is a retired United States ArmyLieutenant General who was the 18th Director of the Defense Intelligence Agency, and was the 25th National Security Advisor, serving President Donald Trump for 24 days, from January 20 to February 13, 2017, before resigning amid controversy over his contacts with Russianofficials. Flynn’s tenure as National Security Advisor is the shortest in history.

The gist of Flynn’s misbehavior, as reported in the media, was that he lied to Vice President Pence about a conversation he had with Russian Ambassador,

Sergey Kislyak.”according to current and former American officials.”

A February 9th New York Times article by Matthew Rosenburg and Matt Apuzzo asserts that the “American officials” spoke on condition of anonymity because their information was “classified.”

Pretty obviously, the so called “American officials” are members of the vast network of spies often referred to as “the intelligence community.” That would include, the FBI, the CIA, Homeland Security agents and who knows how many other unidentifiable federal employees who constitute the 2017 version of George Orwell’s 1984 Big Brother.

Nameless, faceless, devoid of actual proof of how they learned what they claim to know, these ‘American officials’ speak to the nation through the mainstream media, which guards their anonymity jealously.

My best guess is that U.S. spies regularly tap the telephones of Russian, and probably most other countries’ diplomats, which would explain why they were listening when Flynn spoke to Ambassador Kislyak.

Which would also explain why acting Attorney General Sally Yates, an Obama appointee, claimed that Flynn was vulnerable to Russian blackmail. She apparently knew about Flynn’s calls to Kislyak and that Flynn had lied to Vice President Pence about what the Kislyak discussion.

Frankly, the whole rhubarb about Russian interference in the 2016 Presidential campaign is an indictment of the politicization of the federal intelligence community.

The only claim of Russian interference in the 2016 election relates to the Wiki Leaks disclosures about Democratic National Committee favoritism

for Hillary Clinton over Bernie Sanders.

Julian Assuage, founder of Wiki Leaks, insists that his source is not associated with the Russian government.

Big Brother hasn’t told us how he knows that the Kremlin is behind the anti Clinton leaks. Still, the Obama Administration, the mainstream media and the congressional Democrats have accepted the story of Russian interference.

Big surprise, They lost the election. They lost the Electoral College vote.

They have lost the confidence of the nation.

But they still have a grip on the intelligence community. Their unsubstantiated “disclosures” will prove to be a festering infection for the next four years.

Perhaps President Trump will have to say “You’re Fired” to some of those anonymous ‘American officials.’

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FOUR ONE ONE

What follows is a transcript of an actual telephone call which took place on Saturday, February 11, 2017:
OPERATOR: AT&T directory assistance. Your AT&T account will only be charged when a listing is provided. Say a city and state like Atlanta, Georgia. You can also say search by phone number.
CALLER: Harbor Springs, Michigan.
OPERATOR: OK, say the name of the business you want. If you don’t know the name of the business, tell me the type of business you are looking for.
CALLER: Residence.
OPERATOR: OK, residence. Say just the person’s first and last name.
CALLER: Joel Dyksterhouse.
OPERATOR: OK, say the name of the business you want. If you don’t know the name of the business, tell me the type of business you are looking for.
CALLER: Residence.
OPERATOR: OK, residence. Say just the person’s first and last name.
CALLER: Joel Dyksterhouse.
OPERATOR: OK, say the name of the business you want. If you don’t know the name of the business, tell me the type of business you are looking for.
CALLER: Residence.
OPERATOR: OK, residence. Say just the person’s first and last name.
CALLER: Joel Dyksterhouse.
OPERATOR: Thank you for calling Directory Assistance. I’m sorry that we were unable to find what you are looking for. If you would another listing, say get another listing.
CALLER: Ha, Ha, Ha, Ha.
OERATOR: I’m sorry, we are unable to find what you are looking for. If you would like another listing, say get another listing,
CALLER: Get another listing,
OPERATOR: OK, say the name of the business you want. If you don’t know the name of the business, tell me the type of business you are looking for.
CALLER: Ha, Ha, Ha, Ha.
OPERATOR: I’m sorry. I am not finding Ha, Ha, Ha, Ha in Harbor Springs, Michigan.
By then, I was not surprised that the operator could find no humor in Harbor Springs, Michigan. Indeed, I was convinced that she could not find her derriere with both hands.
The answering machine civilization has spawned some interesting reactions. My friend Jim Maiolo used to have a recorded message which just said, “Hello…Hello…Hello. This gahdam telephone.” Then it hung up. Handled robo solicitations really well, but didn’t amuse the Pastor.
Another result of pervasive recorded messages is the rise of BPO – business process outsourcing. You’ve heard the ads from companies who will rent you a real human being to answer the phone.
I decided to do some research. Our local phone company, Charter Communications, still has a real human being on hand to help if the recording doesn’t fulfill your needs.
I was curious and called the local 411 to find out if those human beings are employees of Charter or if they are evidence of BPO – Business Process Outsourcing.
The operator sent me to her supervisor, who transferred me to her superior, who told me I would have to talk to the business office, to which she transferred me. The business office telephone was answered by a recording. Press one if you are interested in purchasing television service. Press two if you are calling about internet service. Press three if you wish to report an outage.
We have become a nation of sheep. We can do only what programmers expect us to do.
I just finished reading George Orwell’s 1949 novel, Nineteen Eighty Four. It  describes in chilling detail the lives of a programmed people. It has taken more than twice as long as Orwell predicted, but Big Brother is among us.
Listen carefully, as our options have changed. So have yours. Dial one for English.

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JUDGE GORSUCH

Neil Gorsuch is a natural successor to Antonin Scalia. He has all the de rigueur qualifications: Columbia undergraduate, Harvard Law, even a Doctor of Philosophy from University College at Oxford.

Gorsuch is legitimately and undeniably conservative, in the sense that he respects the written words of the United States Constitution. His opinions on the Tenth Circuit Court of Appeals confirm his identity as an originalist just as was Antonin Scalia, whose chair he will take, if and when he is confirmed  by the United States Senate.
I have no doubt that his confirmation will take awhile, and that it may very well become nasty. Strange as that may seem in light of his unanimous, voice vote confirmation for the 10th Circuit seat.
But the fact is that the Tenth Circuit isn’t able to overrule Roe V Wade. That prerogative rests in the United States Supreme Court; the very tribunal which began the abortion revolution in 1973.
And abortion is the hot button issue which will inflame the U. S. Senate when Gorsuch comes up for confirmation. The odds are heavy that Gorsuch will get “Borked.”
Robert Bork was a Court of Appeals Judge in the D.C. Circuit back in the 1980’s, having been nominated by President Reagan and confirmed unanimously by voice vote in the U.S. Senate. One of his colleagues in D.C. was Antonin Scalia. Bork and Scalia were of the same mind on many issues. They were often called ‘social conservatives.’
On July 1, 1987, President Ronald Reagan nominated Robert Bork to succeed Lewis Powell on the Supreme Court. Within forty-five minutes, Senator Ted Kennedy was on the floor of the Senate decrying the nomination and spewing the most trumped up exaggerations about what Bork would do to civil rights if he were to be confirmed for the post.
The NAACP jumped into the fight. So did the Senate’s Democratic Majority. Joe Biden, Chairman of the Judiciary Committee, wrote a scathing report, filled with exaggerated innuendos. The Committee even went so far as to obtain a list of videos Bork had rented. It turned up nothing, but who knows what they were looking for.
The hotly contested nomination stayed on the front pages all summer and into the Autumn of 1987. Negative ads were presented on television, hosted by beloved motion picture actor Gregory Peck, who described Bork as an “extremist.” Ultimately the nomination of Robert Bork was not confirmed.
In the process, gutter politics to oppose a Supreme Court nomination became what you might call, “verbalized.” In fact the use of the the word “bork” as a verb has actually been included in the standard dictionary.
Thus to “bork” someone is to oppose their nomination to public office by every means – fair or foul. Perhaps the most famous use of ‘bork’ as a verb can be attributed to feminist Florynce Kennedy, who regaled a convention of the National Organization of Women with this comment about Supreme Court nominee Clarence Thomas: “We’re going to BORK him. We’re going to kill him politically. This little creep. Where did he come from?”
Certainly the Clarence Thomas confirmation hearings were a disgraceful charade and a travesty on our constitutional system.
Every indication is that Gorsuch will be the victim of Borking. Hopefully, a Republican Senate majority will not allow the process to become a repeat of the treatment of Clarence Thomas or to drag on and on as his hearings did.
That said, I pray that Judge Gorsuch will be quickly and painlessly confirmed.
Still, being a realist if not a pessimist, I can’t help noting that Judge Gorsuch is a clone of the elitist cadre that now passes for our highest Constitutional tribunal. They are all from Harvard, Yale and Columbia. Several were clerks in the Court. Gorsuch. himself, clerked for Byron White and Anthony Kennedy.
Kennedy, a Reagan appointee, has distinguished himself as a ‘swing’ vote, by which is meant that he ‘swings’ over to vote with the liberal wing of the Court as often as not.

The Supreme Court is like the crew of a space ship. They live close. In time they tend to smell alike, look alike and think alike. The question is: will Gorsuch swing, or will he  rock the boat?

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ELECTRICALLY CHALLENGED

In an effort to forestall the ravages of old age, I have developed the practice of going to the fitness center maintained by the Birchwood Property Owners Association.

Nothing fancy. I just climb aboard the treadmill and mosey along for thirty minutes. The heart rate might get as high as 115, which is about where they wanted me during my last stress test.

The treadmill is equipped with a small television. On the rare occasions when it is functioning, the time passes quite easily and agreeably.

However.

However, I am inexplicably unable to turn it on, or if it is on, to manipulate it to a desired TV station.

I push all the buttons. Nothing happens. Occasionally someone is using the treadmill next to me and they are kind enough to push the buttons for me.

Viola! The TV is on. Viola! It is tuned to Fox News. He or she pushed the same buttons I pushed. I saw it being done.

On those days, I harken back to the last century when Polly and I were building our home on Park Lake Road in East Lansing, Michigan. One of the chores with which we were tasked was to pick out the light fixtures. That involved driving to Detroit, to a large store with a vast show room.

Wandering about, I noticed a very handsome lamp. Despite close examination, I was unable to locate the on-off switch. Intrigued, I asked a saleslady how one was expected to turn it on and off. Was the switch to be located remotely? On the wall perhaps?

Oh no, said she. All you need to do is touch the base on the lamp. She reached out, touched the lamp base and Lo and Behold, the lamp went on. She touched it again and the lamp went off.
Then she invited me to try it. I did. Nothing happened.

So I asked the young lady if there was some trick. Was it necessary to press hard? Or to twist your finger on the surface of the base? Or to touch it with more than just the tip of your finger?

Your finger! Maybe that was it. Which finger did you have to use? Which hand?

None of that mattered, she insisted, giving me demonstrations to prove the point. Indeed, she insisted the lamp would respond to any touch of human skin. Your jaw. Your foot. Your elbow. Your nose.

You could, she insisted, without demonstrating, turn the lamp on or off with a kiss.

I did not contest her assertions, although I did try to turn the lamp on by using my whole hand. Actually both hands. Still, when I touched the lamp and no matter how I did it, nothing happened.

About this time the sales lady caught the eye of the manager and waved him over. “ What seems to be the problem here?” he asked. I think they learn that line in Biz Ad 101.

“I doesn’t work,” said I. He laughed, and touched the base of the lamp. It went on. He touched it again and it went of. He invited me to touch it. I did. Nothing happened.

We picked out our fixtures for the new house. Thankfully, they would all operate from wall switches. But that was the day I learned that I have an inherently, perhaps hereditary, hostile relationship with electricity and electronics.

You can well imagine the confrontations that disability triggers whenever I light up the Mac Book Pro. All I can do is hunt, peck and pray. 

My good friend Chuck Donnelly, the house-calling computer expert, can testify to my frequent frustrations, even when insulated by a keyboard and a mouse.

He has advised me against getting a touch-screen device.

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E PLURIBUS DUO

The women’s march on Washington, with its pink hats and explanatory signage marks a strange and scary development in American politics.
It used to be that Americans were divided between Republicans and Democrats. Or between liberals and conservatives. Or between black and white. Or between young and old. Rich or poor.
In the 1972 movie, “The Candidate” there is a scene in which Robert Redford, weary of repetitious speech making, bursts into a litany of the opposing groups he asks to vote for him. It is truly hilarious.
But pink politics is something new. By dividing the electorate between males and females, it seems that the marchers are demanding that our national sovereignty must be controlled by the female sex.
Admittedly, males have dominated the profession of governance for as long
as history is recorded. It is still true that the vast majority of elected officials in the United States are men.
The Nineteenth Amendment was ratified on August 18, 1920, almost a century ago. In that time, women have asserted themselves at the ballot box and in every facet of society. Many laws which were written to protect women have been scrapped. The so-called glass ceiling has been shattered in the professions, in business, in education and indeed in government.
Socially, the women’s liberation movement, often called feminism, has had a tsunami influence on American culture. Griswold v Connecticut, a U. S. Supreme Court case decided in 1965, declared anti-contraception laws unconstitutional. That was one of the first feminist victories.
As pregnancy became more of an option than the anticipated result of mating, both males and females found themselves ‘liberated’ from the consequence of sexual activity. Women were free to choose a full time business or professional career outside of the home. Men were relieved of responsibility for pregnancy.
The statistics show how the American family has changed through the years.
When Polly and I were married in 1951 there were about 11 marriages and 2.5 divorces for every 1,000 Americans. Today, those numbers are roughly 6.0 and 3.0.
So about half as many people get married, and the divorce rate is higher. The statistics don’t tell the whole story. Marriage has become optional. Men and women pair up and simply live together. Back in our day, that was frowned upon. Now it is just a ‘significant other.’ For many, ‘going together’ is a revolving door. Nobody keeps statistics on all the moving in and moving out that goes on in our cities.
The birth rate reflects the sexual revolution. Like most European countries, the birth rate in the United States is less than the 2.1 required to maintain the population. Only the immigration of people from Mexico has kept our population growing.
The feminist revolution has had deep cultural overtones. Hormonal differences between males and females dictate attitudes, tendencies and preferences, all of which are related to the reproductive role nature has assigned to the sexes.
Because the good Lord has given all human beings free will, we are capable of learning to act as we wish. Despite natural instincts, women can become professional wrestlers and men can learn the profession of manicuring.
The push toward eliminating the differences between sexes, fueled by the mantra of political correctness has given us gay marriage for both sexes, a demand for universal public toilets, and now, a political movement defined by genitalia.
Admittedly, Donald J. Trump is a throw back. But he is not a misogynist. He does not hate women. Quite the contrary, he loves women. Married three of them and bought himself a beauty contest. Hired one to be his campaign manager. If anything, Trump is a sucker for female pulchritude.

There will be a woman President in the United States some day. That is a given which no one denies. I sincerely hope that the day after her inauguration there will not be a mass protest in Washington D.C. attended by men wearing stove pipe phallic symbols on their heads.

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Trump means to halve number of EPA employees

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TRUMP V HASAN

January 26, 2017

Office of the President

1600 Pennsylvania Avenue

Washington, D.C.

Dear Mr. President:

I write to urge you, among your first acts as Commander in Chief, to close the book on one of the most disgraceful pages in the history of the United States Army.

On November 5, 2009, Nadal Hasan, a Major and a psychiatrist in the United States Army Medical Corps, shouting “Allahu Akbar”, murdered 13 people and injured 30 others at Fort Hood, Texas.

That massacre was investigated by the Department of Defense, by the Federal Bureau of Investigation and by the United States Senate. The FBI concluded that Hasan acted alone, and not in concert with any terrorist organization; the Department of Defense report called Hasan’s action “workplace violence”; and the Senate described the mass shooting as the worst terrorist attack on U.S. soil since September 11, 2001.

In August of 2013, a panel of 13 officers convicted him of 13 counts of premeditated murder and 32 counts of attempted murder, and unanimously recommended that he be dismissed from the service and sentenced to death.

Despite that recommendation, Hasan remains incarcerated in the custody of the United States Army to this day. Not only has the Army failed to carry out the judgment of execution, but it has indirectly excused Nasan’s heinous action as that of an “enemy combatant.” Relying on an amendment to an appropriation bill, the Army has awarded the Purple Heart, legally reserved for battlefield injuries, to victims of the Fort Hood Massacre.

It is patently obvious that the Army’s failure to carry out the execution of Hasan can be traced to the Commander in Chief, if not by his direct order, then by permitting the chain of command to assume the wishes of their civilian superior.

President Bush, in the face of the 9/11 massacre, concluded that it was an act of war. For want of any more culpable adversary, he launched a retaliatory attack on Iraq, the nation against which his Father had waged war a decade before.

Barack Obama attempted to redirect the conflict from classical warfare to a struggle for the hearts and minds of the followers of Muhammad. His conciliatory speech in Cairo on June 4, 2009, just six months into his first term was aptly entitled “A New Beginning.” For the next seven and a half years,  he tip-toed around the existence of radical Islamic terrorism, hoping all the while that his own Muslim inheritance and his acceptance and admiration of Islamic history and tradition would win enough friends in Mosques around the world to stifle the terrorist fringe.

You have aptly characterized his strategy as weakness. It is patently obvious that his attitude toward Nidal Hasan has been influenced by a fear that the recommended execution would trigger a frenzy of retribution by the most radical of the Islamic Terrorists.

By electing you, the American people have sent a signal to the world that Islamic Terrorism will be treated as exactly what it is: an irrational religious cult which is committed to achieving domination of human society by every form of criminal force and terrorism.

Calling it by its true name, Radical Islamic Terrorism, you have identified the culprits as criminals, enemies of civilized society, who are not to be reasoned with or placated , but who must be eradicated from the planet.

Internationally, they cannot be allowed to establish a Caliphate, or permitted to sit among the nations of the civilized world as an equal. Domestically, they must be summoned to the bar of justice for every violation of the laws of the United States, and subjected to the full measure of criminal punishment permitted under our Constitution and our laws.

You, Mr. President, can set a stirring example of this classic American response to domestic terrorism by allowing Nidal Hasan to be dispachted in the manner provided by law.

Sincerely,

Thomas E. Brennan 
Thomas E. Brennan                                                                       

Former Chief Justice of Michigan

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Trump orders media blackout of EPA

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LOYAL OPPOSITION

I have often thought that there is a relationship between politics and the binary code. Binary code; that’s the seemingly endless string of  0’s and 1’s that computers use to store and communicate information.
All human decision making; perhaps all human knowledge, comes down to the 0’s and the 1’s. Yes or No. Aye or Nay. Up or Down. True or false. It is or it ain’t.
Which is why the so called “two party system” came into being. It wasn’t invented or decreed. It wasn’t adopted like the the Constitution. It just happened when Vice President Thomas Jefferson ran against President John Adams in 1800.
The legacy of that election, often called the ‘revolution of 1800’ has been a national Congress in which both Houses are divided by an aisle down the approximate center, separating the majority from the minority.
Procedural rules in both houses protect the right of the minority to participate in the legislative process. Any truly deliberative body needs to hear both sides.
The Catholic Church never confers sainthood until it has heard from a “Devil’s Advocate” in opposition. Vigorous debate is the best insurance against bad decisions.
In the United Kingdom, it is customary for the party which is not in power to organize a “shadow government” consisting of unofficial department heads corresponding to the members of the ruling Party’s cabinet. Their function is to critique the work of cabinet officers.
The bottom line is that in civilized nations there is such a thing as ‘loyal opposition’ which is both honorable and useful. Members of the minority party take the same oath of office, and are bound to support the same Constitution as members of the majority.
We commonly talk about, and approve of, efforts by Representatives and Senators to “reach across the aisle” to assemble bi-partisan support for legislation. That involves nothing more nor less than listening to objections, debating alternatives and arriving a better conclusion because the loyal opposition has concurred in the final product.
The whole process is civilized, intelligent and proven by human experience.
All of which brings me to the misguided comments of Congressman John Lewis of Georgia: 
“I believe in forgiveness. I believe in trying to work with people,” Lewis told NBC’s Chuck Todd in a segment for “Meet the Press.” “It’s going to be hard. It’s going to be very difficult. I don’t see this president-elect as a legitimate president.”

Lewis argued that the efforts of hackers suspected to be Russians, to discredit Hillary Clinton, tilted the election in Trump’s favor.

“That’s not right. That’s not fair. That’s not the open, Democratic process.” Sorry, Congressman, it was exactly what happens in free elections. Your side reveled in disclosing a statement by Mitt Romney at a private meeting;

the infamous 47% remark. You really can’t complain when Wiki Leaks reveals that the DNC was siding with Clinton against Bernie Sanders.

All of which wouldn’t matter much if it were not for Lewis’s background as a civil rights protester and his call to organize protest against the 45thPresident of the United States.

There is a place for loyal opposition in American politics. It’s a good thing; a useful component of our democracy.

But the attempt to marshal civil disobedience against the duly elected Chief Executive of the country is not only irresponsible, it is downright treasonous.

The thugs who rioted during the President’s inauguration broke the law, destroyed property and endangered lives. That 217 were arrested attests to the fact that there was serious mischief being done.

The thousands of women who marched today were peaceful. Despite their lack of any agenda, they had the right to march and express their unhappiness.  But I sure hope they don’t listen to Representative Lewis’s call for civil disobedience. 

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HEALTH CARE REVISITED

I wrote a blog about health care back in 2009, called TOO MANY DOCTORS?. Here it is: http://oldjudge.blogspot.com/2009/07/too-many-doctors.html.

My argument then, and still today, is that affordability is a subjective standard, best served by unleashing the free enterprise system.

On reflection, I must say that there is one big problem with free enterprise. It can best be described as REALLY free enterprise.

REALLY free enterprise, like basic free enterprise, begins with the idea of human liberty; nothing more nor less that human beings pursuing their own happiness by making their own decisions.

But REALLY free enterprise includes the freedom to act in concert with other people. Thus associations, corporations, partnerships, unions, churches, clubs, political parties – you name it – every manner of combining the efforts of more than one person, involves free people freely associating to pursue happiness together.

And the problem is that the freedom to associate often gets in the way of individual freedom.

I remember the phenomenon very well from my days spent launching the Thomas Cooley Law School. The American Bar Association is a fine organization, completely voluntary, which lawyers all across the county join for the purpose of improving their profession.

But the common economic interest of lawyers often tempts them to close the front door of their profession. It’s a common practice in all trades and occupations. Licensure statutes are always popular with licensees, whether plumbers, builders, barbers or nurses. The theme is “you don’t get to do it unless you are one of us.”

In business, many people seek to “corner the market.” It’s call having a monopoly. It’s a natural selfish instinct.

In the final analysis, the ultimate monopoly is the exclusive use of force to accomplish things. It’s called sovereignty; people power; the power of government.

Historically, logically and necessarily, under the common law, it is a proper function of government to regulate monopolies.

Now, here is where it gets sticky. Under the Constitution of the United States of America, we are a federal nation; that is to say’ the power of government, the right to use force to accomplish things, is divided between  

the States and the national governments.

That division can be stated very simply: the national (we call it the ‘federal’) government gets to use force to do all those things, and ONLY those things

specified in the national Constitution. The States get to use force to do everything else.

That is what the Tenth Amendment to the U. S. Constitution, the last Right of the Bill of Rights, tells us. Whatever power has not been expressly given to the national government stays in the States or the people themselves.

Health care basically consists of two things; knowing what to do and doing it. Diagnosis and prescription. Knowledge and service. Heads, hands, and hearts. Making it affordable in a free country requires removing every unnecessary obstacle to the recruitment, training and authorization of health care professionals.

And it requires reducing the responsibility for health care to the lowest common denominator. The cheapest health care is that which is self administered: diet, exercise, rest. Learning how to take care of yourself.

Knowing when you are sick and what to do about it.

The next cheapest source of health care is your family. The folks who love you. The people who live under the same roof that you do. Right after that comes the guy next door. The folks in the neighborhood. Your town. Your city. Your State.

The most expensive health care is that which is farthest away. Like the brain surgeon in Switzerland. Or the bureaucrat in Washington, D. C.

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Trump trounces traitor Kasich for 3rd time in 6 months

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R AND R

The Greatest Generation invented the term: R and R meant Rest and Recuperation. Or Rest and Recreation. Or Rest and Relaxation. It didn’t matter. It was just R and R. Or maybe even “Rock and Roll.” Everybody knew what it meant.

But times change and words change and even slang and abbreviations change. Google R and R today and you might find an article about “Repeal and Replace.”

Nancy Pelosi says the only good thing about Repeal and Replace is that it is alliterative. I don’t often agree with Nancy, but I’m with her on this one.

After all the thundering promises to repeal Obama Care, Congressional Republicans have jumped on board the Pander Train and promised to enact a new National Health Care Law to replace the discredited ACA.

Early in his campaign, Donald Trump had a simple answer to the Obama Care question. He said: “Just let the Insurance Companies sell across state lines.”

Hello. What a drastic idea? For more  than 200 years, health care has been a matter solely within the jurisdiction of the States. Every State has some sort of regulation of health insurance companies. Some, like Massachusetts, have a system very similar to the Affordable Care Act.

The result over the years has been that some States have more inclusive, more affordable, more desirable health care providers than other States.

But they also have licensure requirements that keep foreign companies out or put them at a competitive disadvantage.

Mr. Trump is a businessman. He understands the free enterprise system. He knows that “affordable” is a slippery word. It is certainly not a standard that can be written into the law. What is affordable for one person is exorbitant to another.

The Republicans in Washington have lost their nerve. They are backpedalling on their brave and bold promise to repeal Obama Care.

And why? Simply because there are some features of the law that are popular and they don’t want to be pegged with killing things like coverage for pre-existing conditions, extended parental coverage for children to age 26 and the large number of people who are simply getting health insurance as a welfare benefit.

Surely there are many in Washington who hope that the law can be replaced with support from both sides of the aisle. After all, Bill Clinton said the law is crazy, didn’t he? And Hillary conceded that it needs amending. The D.C. establishment of store bought politicians – the “swamp” as Trump calls it – will be working hard to mesh the ideas of “fix” and “replace” in order to claim a bipartisan solution.
The real tragedy is that nobody is speaking for the Constitution. Both Parties are committed to a national health care system, dictated from Washington, D.C. and mandatory from the Atlantic to the Pacific.

Hamilton, Madison, Jefferson and Washington would be appalled. There is nothing in the Constitution suggesting that health care is a proper function of the national government.

Health care in America, before Obamacare, was the envy of the world. It was built on the free enterprise system; the sum total of the free choices of a free people.

Health care is a human necessity, like food, clothing, shelter and liberty.

Like these other essentials, health care cost varies from State to State, often from town to town. The history, the weather, the culture, the terrain, all these things affect affordability.

One size does not fit everybody. The last thing we should want to do in America is to kill the spirit of initiative and enterprise. The Republicans have the gavel in Congress. They should repeal Obamacare, every word of it. Make it effective in two years to give everyone time to adjust.

Then forget about replacing it with another federal program. Just let the fifty States do what they are supposed to do under our Constitution.

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HILLSDALE’S ARNN

Larry P. Arnn, the President of Hillsdale College, is  a brilliant man with impeccable academic credentials and a national reputation as an expert on the United States Constitution.
He is also an energetic and indefatigable fund raiser.

In March of 2016, President Arnn sent Polly and me a solicitation letter which contained – visible through a window – a one dollar bill. It’s a not uncommon strategy to get folks to open letters asking for money.

I replied as follows:

March 6, 2016

President Larry P. Arnn

Hillsdale College

Hillsdale, Michigan

Dear Larry:

Polly and I have supported Hillsdale and will continue to do so. No need to send money. We have always been impressed with the mission and tradition of Hillsdale. Certainly the American people need to be reminded of the precious gift of constitutional government that has been our birthright, and your national educational campaign is necessary and timely.

There is, however, a dimension in the field of constitutional study that, I believe, has not been adequately addressed by any American college or university: the Article V amendatory constitutional convention.

Currently, there are at least seven active initiatives seeking a convention call.

At the same time, there are a number of voices, both from the Left and the Right, expressing opposition to an Article V convention for any reason.

I am writing to urge you to consider hosting a debate on Article V. In this season of political debates, I think such an offering would garner a large audience and could well produce substantial revenue for the sponsor.

I would very much appreciate the opportunity to sit down with you and discuss this idea.

Sincerely,

Thomas E. Brennan

cc: Chris Chocola

Encl: $100

That letter was never answered or acknowledged, but I can’t say it wasn’t noticed. Indeed it seems to have induced President Arnn’s staff to achieve new heights of solicitation.

As the year 2016 came to a close, a virtual crescendo of emails from Larry Arnn exploded on my computer screen. No fewer than eleven requests for money: On December 3, 8, 17, 24, 28, 29, 30, 30, 31, 31, 31.

The other day, my son, Tom, Jr. wrote to encourage me to read Larry Arnn’s speech printed in Hillsdale’s magazine, Imprimus. I did, and found it interesting. Indeed worthy of comment. 

I would welcome a vigorous exchange with President Arnn on various Constitutional issues. Maybe I should send him a dollar.

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THE TROUBLES

I should stay out of the storage room. It’s too full of old files, poignant memories, temptations to blog.
This time, I stumbled onto a file entitled “Larry Brennan’s Song.” It was nineteen years ago. Northern Ireland was still mired in “The Troubles” and suffering from endless rounds of murder and revenge between the Catholics and the Protestants of Belfast.
USA Today carried a story about a 52 year old Catholic cab driver who was assassinated while sitting in his parked taxi.
I wrote a song about it:
The Legacy of Larry Brennan
Twenty-five days after Christmas Morn
         In dear old Belfast Town
Assassins hailed a taxicab
         And gunned he driver down
Well, he died for being Catholic
         He died for being Green
His sweetheart was a Protestant
         She’ll never be his queen
No, she’ll never be a Brennan now
         She’ll never share his bed
The Troubles split poor Larry’s brow
         The Troubles left him dead
Now, he was a gen’rous witty man
         Who loved most everyone
And for his kindness he was paid
         Four bullets from a gun
Oh, he had no time for politics
         He helped the sick and old
His killers didn’t care at all
         They left his body cold 
Yes, the Troubles trouble Ireland
         A People torn apart
They took poor Larry Brennan’s life
         And broke his mother’s heart
Then his sister, Lish O’Reilly, stood
         Midst flowers in the hall,
And with good sense she spoke the words
         That echo for us all:
“I forgive them, those that did this thing”
         Her eyes were rimmed with tears
“They’re sick and wounded animals,
         Imprisoned by their fears.
“No, we can’t let hate and bitterness
         Control the Irish heart
If we’re to see the Troubles end
         We’ve got to make a start”
Tho’ two thousand years have come and gone
         Since Christ was crucified
The world still longed for peace on earth
         When Larry Brennan died.
Now his little house on Friendly Street
         Will never be the same
The World has built a friendly shrine
         In honor of his name
So let this be Brennan’s legacy:
         That vengeance won’t be seen
And peace will come to Ireland
         For both the Orange and Green

Historians tell us that the Irish Troubles erupted in 1968 and ended thirty years later with the Good Friday Agreement of 1998. As we gather to celebrate Christmas 2016, in a painfully divided America, let us pray that our troubles will soon be consigned to history as well.

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FIVE DAYS TO CHRISTMAS

I wrote another blog today. More opining about the President-Elect, the Russians, the world and all its problems, dangers and disputes.
Polly didn’t like it. Her counsel: it’s Christmas time. Write about Christmas.
And so it is. December 19, 2016. Five days until Christmas.
Downstairs, from the bookcase that holds the family bible, my Supreme Court opinions, our Last Will and Testament and some other significant papers, I retrieve a dog-eared letter sized binder containing 49 typewritten pages.
The cover is decorated with a Christmas card picture of a little girl standing on a chair and putting up Christmas decorations. It announces the title of this little tome: Five Days To Christmas.
It is a chronicle written in 1969. I was then Chief Justice of the Michigan Supreme Court. We lived in a large house on Berkeley Road in the west side of Detroit area known as Sherwood Forest. Five bedrooms, four fireplaces, an extra lot next door. It was a great place to raise a family and a great place for Christmas. Our six children ranged in age from four to seventeen.
In the course of a sleepless night on December 19, 1969, I decided on a very special Christmas present to give to my family. I decided to do three things:1)   quit smoking; 2) do it cheerfully and not brag about it, and 3) write down all the things I think and feel during the five days before Christmas.
While I managed to stop smoking during that holiday season, it was not until five years later that I finally kicked the habit for good.
In due course, I gave each of our children a copy of the little book. I am told that every so often they read it again and enjoy reminiscing about those ‘good old days.’
Whether I was cheerful is a matter best left to the memories of my family and to the episodes I described in the booklet.
As I skim it again myself from the perspective of eighty-seven years, I am touched a little and amused by the hectic lives we were living. Obviously, I didn’t know then what I know now. I had no idea what life would be like in 2017.
In December of 1969 some people were suggesting that I should run for the United States Senate in 1970, and I was considering it. Polly was not very keen about the idea. Neither of us had any idea that in three years I would start a law school and resign from the Court.
Considering how things have worked out for us, the final paragraphs of “Five Days to Christmas” are rather prophetic:
For people like us there is nothing to worry about in a new year of 1970 or a new decade of the 70’s. We will make all of the decisions when then shall become now. The time of decision will be  a crashing waterfall of pushing and pulling and testing and shouting and laughing and holding hands and being proud and crying and consoling and accepting the flexible challenge of the future and being reconciled to the inflexible memory of the past, and believing in the total importance of the present.
And now it is Christmas.
Now it is the day on which the Babe was born.
Who comes into our hearts and into our lives.
Who helps us to love one another.
As He loves all of us.
Who teaches us to see in the smallest events of our daily lives
The miracle of His mercy and His love.
Who teaches us to be happy now
Just knowing that now is Christmas

And we are all together.

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EMOLUMENTS

In the cacophony of objections to the stunning election of New York Businessman Donald J. Trump to the office of President of the United States, none is more preposterous and laughable than the scurrying of left wing intellectuals to advance constitutional objections to the real course of human events.
It goes something like this: Donald Trump’s business assets and interests are world wide. He has hotels and golf courses all over the planet. He has done business in many, many foreign countries, paid money and made money in many languages. In short, Trump has what our nation’s Founders feared: “foreign entanglements.” Putting a legalistic, scholarly patina on it, Harvard Professor Lawrence Tribe and his cohorts call attention to the “Emoluments Clause” of the federal constitution.

Aha! You never heard of that, did you? Sounds ominous. Especially, when you dub in the motives that drove the founders to include the “Emoluments Clause” in the Constitution. They were concerned about the established nations of Europe, especially England and France, co-opting our new national government by simply buying off our nation’s leaders.

In colonial times, it was not unusual for European kings to grant charters to

people who wanted to settle in America. People were paid money to explore and settle in the new world. Christopher Columbus got money from the Queen of Spain. King Charles II gave William Penn the huge parcel of land that became Pennsylvania.

So this is what George Washington, James Madison, Benjamin Franklin and the rest of them wrote as the last paragraph of Article I, Section 9 of our founding document:

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 any present, Emolument, Office or Title, of any kind whatever, from any King, Prince or foreign State.

No one has yet supposed that Elizabeth II, Queen of the United Kingdom, is likely to dub Donald Trump a Knight of the Realm, or designate him and his progeny as Princes or Dukes of the British Empire.

No, the theory is much more nitty gritty. They argue that Trump will be making money overseas, taking, they argue “emoluments” from foreign powers, which the Constitution forbids.

So if the Prince of Wales decides to play a round of golf at Trump International Golf Links in Scotland, and he pays a greens fee for the privilege, Professor Tribe and his devotees will holler “Emolument, emolument!”

I say that is nonsense. Black’s law Dictionary defines an emolument as:

The profit arising from office or employment: that which is received as compensation for services, or which is annexed to the possession of office as salary, fees, or gain arising from the possession of an office.

In short, our Constitution forbids federal officeholders from being on the payroll of a foreign  government. But wait, you say, it also forbids the President to accept “any present” from a foreign leader or government without Congressional approval.

Indeed it does, and Congress has addressed the matter. The Congress has consented generally, in the Foreign Gifts and Decorations Act, to the acceptance of gifts from foreign countries which are of minimal value and offered as a courtesy or where refusal to accept the gift would adversely affect our foreign relations. The inventorying of such gifts is required by law. Bush 41 received over 40,000 gifts and President Clinton accepted more than 92,000 while in office.

Such gifts are not the personal property of the President or his family. They belong to the United States.

What is of more importance in the debate over Trump’s foreign connections is this fundamental question: Is there reason to believe he will be influenced by personal economic interests in carrying out his Presidential duties?

I submit that it is most unlikely. After all, Mr. Trump is a very wealthy man. He proposes to serve as President without pay. By what rationale can it be said that he is going to be swayed from his sworn duty by the profit motive?

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SHEEN

I sat down at the computer prepared to write a scathing critique of the group which calls itself “Unite for America.” It’s a gaggle of Hollywood celebrities, most of whom are junior varsity types. They have made a video pleading with the delegates elected to the Electoral College to ‘go rogue’ on December 19, and vote contrary to the choice of the voters who elected them.
The “A lister” whose visage and voice give street cred to the video Is an actor by the name of Ramon Antonio Gerardo Estevez, better known to American movie goers as Martin Sheen.

No doubt his credible performance as President Josiah “Jed” Bartlet in the popular television series ”West Wing” bolsters the appearance of authenticity when he pleads with Presidential Electors to ‘vote their consciences.’

Certainly the odds are very much against any such uprising. Not only did Donald Trump win by a substantial margin of the Electoral College, but since the delegates are selected by the Parties, they are unlikely to jump the fence.

And besides, about the most Sheen and his compatriots can hope for is to deny a majority for the President-Elect, which would throw the final choice into the Republican dominated House of Representatives. Trump would surely win in that forum as well.
So I confess that I am disenchanted with the notion of a scathing critique. Enough to say that the “Unite for America” video is a fool’s errand.

Still, my research on the subject led me to read the background of Martin Sheen, and I confess that he has intrigued me.

His mother was Irish, an immigrant from Tipperary. I like that. His Dad was from Spain. They had ten children. Sheen was number six, and the first to be born after the family moved from Bermuda to Dayton, Ohio. His left arm was crushed by forceps at birth, and remains about three inches shorter than his right. As a child, he contracted polo and was bed ridden for a year. His mother died when he was eleven and the family was held together by Holy Trinity Parish in Dayton.

His first foray into the world of social justice was to organize a strike among caddies at the Country Club. His complaint: obscenity and anti-semitism by the members. I like that, too.

His Dad didn’t want him to be an actor, but he borrowed money from the parish priest and went to New York.

Early on, Sheen met and worked with Dorothy Day, the activist organizer of the Catholic Worker movement. He never changed his legal name, out of respect for his Dad. His stage name came partly from Robert Dale Martin, the CBS executive who gave him his first big break, and from the iconic televangelist Bishop Fulton J. Sheen.

His stage, film and TV credits go on and on. Along the way, he has

collected a number of awards both as an actor and as a director.

Throughout his career, Sheen has been a politically active liberal. He puts his money and his time where his mouth is; supporting liberal and charitable causes.

I am sure that Martin Sheen and I would find an ocean of topics on which we might disagree. Still, I can’t help respecting a fellow who really believes in what he believes in.

Surely Martin Sheen is not the only American who had, and perhaps still have, misgivings about the qualifications of Donald Trump to be President of the United States.

But Sheen, undaunted, is still out there, still grasping at straws to move the country to where he thinks it should be.

Don Quixote? Tilting at windmills? To be sure. But, in truth, I have done enough of it myself to admire the man. www.conventionusa.org.

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Obama parting gift: $3K cost per person because of regulations

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HAIL MARY POLITICS

My thoughtful liberal friend Al has favored me with a reading list of several websites and blogs advocating that the Electoral College go rogue on December 19th and either elect Hillary Clinton or some as yet unidentified compromise candidate. Anybody but Donald Trump.

The anti Trump sentiment common to those writings is pervasive. He is called all kinds of hateful names and accused of all kinds of wrongdoing.

No matter that over 60 million Americans voted for the Donald. No matter that he won more than 300 electoral votes. The hue and cry against his victory has included tearful college students who are too distraught to go to class, and politically naïve teen agers who have marched out of school to parade down the avenue in protest of the national election.

All of which is by way of a contrast with the famous exchange during the last Presidential debate in which Chris Wallace asked both candidates if they would accept the results of the election and concede if they lose.

Trump dodged that question, saying that he felt the election was being “rigged” and insisting that he would not agree in advance to concede, but would wait to see what happens. Mrs. Clinton, on the other hand, was adamant that a losing candidate ought to concede graciously, which has been the tradition in America. She agreed with Wallace that concession begins the national healing process.

So what has actually happened? The losers are mad. They cling to every far fetched hope or strategy which might reverse the election results.

We are favored with scholarly essays about the creation of the electoral college and the intention of the Founders. We are told that legally the electors can vote for anyone, even though several states have laws requiring their electors to vote for the candidate who carried their state.

The fact, of course, is that presidential electors are chosen by the political parties, and their loyalty is sufficient to assure that the vote will go as it always has; to the candidate who wins in each state. The effort to get the Electoral college to ‘go rogue’ has been compared to a desperate, last minute, “Hail Mary” pass in a football game.

There are valid arguments which favor improvement of the electoral college system. A number of responsible citizens have argued in favor of simply electing the President by the popular vote.

That idea has merit, but certainly it cannot by superimposed on an election which was conducted under the existing electoral college rules. Donald Trump conducted his campaign in a manner designed to win a majority of the electoral college. No doubt Hillary Clinton did, too. They both vied for the ‘swing’ states.

If the election was to be based on the overall popular vote, surely the candidates’ strategies would have been different. Under the present system, no sensible Republican will spend time, money and effort trying to win votes in California and New York. Ditto Illinois and Massachusetts.

The fact that Hillary won the popular vote is irrelevant. The election wasn’t about the popular vote. It was about the electoral votes in each of the several states.

The electoral college consists of 535 electors; each state getting a number of electors equal to their total representation in Congress. Because there are 435 Representatives in the House and 100 Senators, the Electoral College is 81% representative of the people and 19% representative of the States.

This ratio has been static for over one hundred years because the House of Representatives is frozen at 435 members. The Founders of our nation intended that the House of Representatives would expand as the population increased. It hasn’t, for the simple reason that incumbent members of Congress do not wish to dilute the power of their offices.

The British House of Commons has 650 members representing 64.1 million people. If the U.S. House were equally as representative we would have 3,200 Congress members. In that case the number of Electoral College votes allotted to the States rather than people would amount to only 3% of the electoral votes.

Bottom line, the Electoral College is no more archaic than the House of Representatives. What America needs is constitutional reform.

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BURNING THE FLAG

On April 25, 1976 during a baseball game at Dodger Stadium, in Los Angeles, a 36 year old native American named William Thomas and his 11 year old son dashed onto the field and tried to burn an American flag. Chicago Cubs outfielder, Rick Monday, snatched the flag away from them in an episode long revered as the Greatest Play in Baseball.

In the forty years since that historic episode, Monday has been honored many times, and Americans have celebrated his deed as evidence of their reverence and respect for the Stars and Stripes.

At 6:55 A.M. on Tuesday, November 29 2016, President-Elect Donald J. Trump tweeted out this opinion: “Nobody should be allowed to burn the American flag. If they do, there should be consequences – perhaps loss of citizenship or a year in jail.”

Like so many other things Mr.Trump has said, his flag tweet echoed the opinion of the majority of the American people. Even the substantial minority who accept or agree with the Supreme Court’s opinion that flag burning is merely an exercise of free speech mostly feel that desecration of the flag is not something to be encouraged.

Congress adopted the Federal Flag Desecration Law in 1968. It was enacted in response to a series of flag burnings in Central Park, as a generation of Americans recoiled from conscription to fight in the Viet Nam War.

That law, and a number of State laws to similar effect have been ruled unconstitutional by the Supreme Court.

Congress went back to the drawing board in 1989 enacting the Flag Protection Act, which was thought to be less objectionable than the 1968 Desecration Law. This time, there was an outbreak of flag burnings done specifically to protest the new law. Then, in the 1990 case of United States v. Eichman (496 U.S. 310), the Supreme Court again held that flag burning is a form of free speech protected by the First Amendment.  

Over the last 27 years there have been several efforts to muster a two thirds vote in both Houses of Congress in order to propose a constitutional amendment to outlaw flag burning. They have all come up short.

All of which has tempted the Old Judge to weigh in with his opinion.

First of all, it is pretty obvious that burning or desecrating the flag, if speech at all, is symbolic speech. The plain undeniable truth is that flag desecration is an overt action which can be performed for any number of reasons.  

The character of a flag burning; that is the reason why it is done and the effect or consequence of doing it should determine whether the act is right or wrong.

Obviously, a respectful burning of a worn out flag is of a different character from the disrespectful burning of a new one. So here is my suggested flag law:

The burning or other desecration of the flag of the United States in public, for the purpose and with the effect of inciting a riot or other  breach of the peace, or encouraging the destruction of property or injury to persons is unlawful.

Violation of this act shall be punishable by a fine of not more than $5,000 and, or imprisonment for not more than five years.

There is another, more serious motive for flag desecration. Section 3 of the Third Article of the United States Constitution provides:

Treason against the United States, shall consist only in levying 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.

Therefore, there should be a second section to my new flag law as follows:

If the burning or other desecration of the flag of the United States is done for the purpose of adhering to their Enemies, giving them Aid and Comfort, it shall be Treason and punished as provided by law.

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