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BurtonHanson.Com Political Opinion Journal - Archives IV

 Monday, 08.08.2005

 Free speech is a 'bad idea'? Susan Holden, President of the Minnesota Bar Association, representing the state's lawyers -- who, come election time, seemingly always support, with endorsements & cash contributions, every governor's typically-political judicial picks against their challengers -- doesn't actually say free speech is a bad idea. Or does she? You decide for yourself. This is the opening sentence of her opinion piece in today's Minneapolis Star-Tribune opposing the Eighth Circuit's en banc decision several days ago (click here) reaffirming the free speech rights of judicial candidates: "A federal appeals court decision last week gave us something that may be legal, but is a really bad idea for a lot of reasons." Hmm. I can't help thinking she just doesn't like judicial challengers to have the same rights that judicial appointees have long had prior to their appointment.

As everyone knows, political supplicants have long been able to somehow get the message to "their" governor, when the governor belongs to their party, that they are birds of a political feather -- witness Minnesota Governor Rudy Perpich's pretty much across-the-board appointment of DFLers to the multiple court of appeals positions when the court was established. Back in 2002, when the U.S. Supreme Court heard oral arguments in Republican Party v. White, the incomparable Dahlia Lithwick asked rhetorically if judges and others opposing the free exchange of ideas in judicial campaigns were "the great pretenders." She expressed the idea that all judges in some way are biased but some are better than others at pretending they're not. She said, in part: "Whether or not you appear before a judge who announced he's biased during the election, chances are you are appearing before a judge who is biased. So isn't it better just to know your judge's biases well in advance? It sure would have made Bush v. Gore a whole lot easier to swallow." From Wait, Wait, Don't Tell Me! Should judicial candidates keep their opinions to themselves? (Slate 03.26.2002).

As Chicken Little was walking under an oak tree, an acorn fell and hit her on her head. "Oh, my God! The sky is falling!" she said. Sadly but predictably, as Ms. Holden's opinion piece indicates, the response from many members of the local judicial-media-bar complex to the Eight Circuit's decision is similar to the judicial-media-bar complex's reaction to Republican Party v. White when it was released in 2002, a reaction that at the time reminded me of Chicken Little's response to getting hit on the head with an acorn.

Although I was an unsuccessful candidate for chief justice in 2000, I was not involved in the litigation and have no connection with the litigants. During my campaign, I publicly urged my opponent, the current chief justice, to do as I did, forego all endorsements and contributions from both individuals and groups. Her chairperson hinted that I took the position because I couldn't get anyone to endorse me or contribute to my campaign if I tried. Undoubtedly there's more than a grain of truth to that. :-)  In any event, her campaign did not forego either endorsements (many from prominent politicians and many more from lawyers who regularly appear in trial and appellate courts) or contributions (typically from lawyers who regularly appear in trial and appellate courts). Her campaign had a budget of around $120,000; mine, under $100. It is said that judges do not know who their contributors are. Some believe that is not always so in practice, at least if historical hearsay has any reliability. I'm willing to accept it is so for argument's sake, because it makes little difference: the judges do know the names of all the politicians and attorneys who, typically after being requested by the judge's manager, allow their names to be circulated as endorsers of the judge's candidacy.

Back then, in the glorious heyday of judicial elections, i.e., back when censorship of candidates was permitted, appointed judges challenged at election time occasionally were none too subtle in trying to convey to voters that, e.g., they were "tough on crime." What a judge could not say directly, he said indirectly, as by trumpeting his prior experience as a "prosecutor" or as by listing on campaign literature all the prosecutors who supported him or her. Both in 2002 and in 2004, after the U. S. Supreme Court's decision in Republican Party v. White, some judges facing election challenges were still trying to have it both ways. Thus, e.g, a judge of the Minnesota Court of Appeals who was facing a challenge, responded to the decision by seemingly taking the high road, saying "Our personal opinions are just not relevant on this court," but then slipping in that she was "a gun owner," a fact having visceral appeal to many voters in this state full of hunters and gun-owners'-rights-advocates.

As I've said before, it's possible some judicial candidates will go overboard in Minnesota. It's possible some groups will try to collect large sums of money to influence the voters. Those things already happen in the other races -- e.g., Congressional races -- and yet the Star-Tribune doesn't seem particularly troubled by those developments. As far as I can see, it's done next to nothing to level the playing field in those races, as by covering the views of underfinanced candidates. Instead, it treats the campaigns like horse races, focusing its attention on the establishment favorites (usually the big spenders, the party-endorsed, and the candidates the Strib likes) while totally ignoring the long shots, no matter their merits.

Anyone who really knows me knows that I've always been pretty independent-minded, that I'm not a joiner, that I don't follow the crowd, and that I don't particularly want any crowd to follow me. I've proven that in two campaigns -- and no crowd followed me. :-) I think I'd make a good judge but I make a poor candidate. As my old torts professor at Harvard Law, the patrician Milton Katz -- who had been Chief of the Marshall Plan in Europe in 1950-51 and always wore a vested suit to class -- said in a book he wrote, the skills needed to get elected (or appointed, I'd add) to a particular office aren't necessarily the same as those needed to serve well in that office. Thus it has always been, including in filling judicial offices here in Minnesota, whether by appointment or election.

I don't believe in glorifying the ordinary voter. But I don't believe in glorifying the ordinary governor either. Thomas Jefferson said, "If you state a moral case to a plowman and a professor, the farmer will decide it as well, and often better, because he has not been led astray by any artificial rules." If you substitute the word "governor" for "professor," the point remains equally valid. Ms. Holden speaks of Minnesota as having an "enlightened public." If she really believes that, she must believe that they are as capable of separating the wheat from the chaff as the governor is. In any event, our state constitution says they are. And our federal constitution, as now authoritatively interpreted, gives candidates for election to judicial office the same right to inform the voters (as selectors of judges) of their biases, as candidates for appointment to judicial office have to inform the governor (as selector of judges) of their biases.

In his Journal for April of 1850, Ralph Waldo Emerson wrote, "[L]awyers...are a prudent race though not very fond of liberty." What a shocking thing to think or say. Alas, there is evidence throughout our history giving some credence to it. In any event, the Jefferson and the Emerson in me say that the people are a surer guarantor of our liberty than the lawyers on Beacon Street in Boston or First Avenue in Minneapolis are.

 Thursday, 08.04.2005

 Remembering a man who should have run for office -- unlike me, he might've won. Today would have been the 66th birthday of my late brother (& only sibling), Dr. R. Galen Hanson, Ph.D, who died early last November.

My mother, who was a hell of a public speaker herself, raised Galen (but not me) to be a public speaker. As a junior in high school, during the 1955-56 school year, he won the State American Legion Oratorical Contest, then won the sub-regionals & regionals before advancing to the National Finals, held in a large high school auditorium in St. Louis, MO. There were four finalists. For the extemporaneous part of the finals, he drew (out of a hat) as his topic one of the Civil Rights Amendments to the Constitution. I was present with my parents (we went by train) & can attest that he gave a barn-burner of a speech on the topic of racial equality, a speech that drew thunderous applause from the student body. His speech, however, split the judges dramatically, one giving him a "first," the others giving him "fourths." He took third.

He attended Augsburg as a freshman during the 1957-1958 term and was elected President of the Augsburg Young Republicans, bringing prominent politicians to campus, including then Mayor P. Kenneth Peterson, who, by coincidence (from our perspective) was a brother of the man who later would be a Minnesota Supreme Court Justice -- & my main mentor in the law -- C. Donald Peterson. While he was attending Augsburg as a freshman, he regularly crossed the old Washington Avenue Bridge to the U. of Minn. at night & took extension/night courses. He also had a near-death experience following an emergency appendectomy that profoundly influenced his view of life. He recounted that experience in a small "inspirational" volume titled A New Day.

The following year, 1958-59, he enrolled as a more-than-full-time student at the University. That year he ran for & was elected to All University Congress. He also won the Pillsbury Oratorical Contest, a contest Justice Peterson himself won in the 1930s when he was a student at the U., with a controversy-causing speech titled "In Defense of James O'Kasick." Galen received his B.A. degree from the University of Minnesota the following spring -- i.e., at the age of 19, just two years out of high school. His achievement is even more astounding when one considers that in those days there were no programs whereby colleges gave students credits for having taken certain Honors Courses or Advanced Placement Courses in high school, programs that allow some students to begin college as sophomores.

He later received an M.A. degree from the U., followed by a Bachelor of Divinity degree from Perkins School of Theology at Southerm Methodist University in Dallas, TX, followed by a Ph.D. degree from the U.

As a first-year student in the Bachelor of Theology Program at Perkins School of Theology at S.M.U. in Dallas during the 1961-62 school year an incident occurred that reveals Galen's character. To his chagrin, he learned on arrival that while Perkins had become racially integrated, the undergraduate program was still, despite student-body disapproval, racially segregated. Galen began the year as a resident counselor in Smith Hall, one of the dormitories built for the seminary but which was used exclusively by students not enrolled in the seminary. One day an administrator, acting on a tip, requested that Galen go to the dorm's lounge and ask a black seminary student, who was sitting there reading or watching T.V., to leave because the dorm was not considered part of the seminary, which was integrated. Galen, when the roll is called up yonder, can say that he refused the order. Because of that refusal and because of his refusal to enforce in Pontius Pilate-fashion certain ludicrous parietal rules on his charges, he was, let us say, allowed to leave his position and move to another dorm.

While attending graduate school at the U., he emceed a number of all-university entertainment programs in the ballroom at Coffman Memorial Student Union, including one featuring the Lennon Sisters. He also inherited my mother's ability to pull off the seemingly impossible. Knowing that Olympic Figure Skating Champion Peggy Fleming was in town on a one-week run skating (as a pro) with Shipstead & Johnson's Ice Follies, he called & arranged dates for her & a number of other female skaters with U. students, reserving Ms. Fleming, of course, for himself.

Galen taught sociology as a tenured professor at Normandale Junior College and, later, taught sociology of medicine and related subjects in the Department of Family Practice at the University Medical School in Mpls. He was the author of a number of books, including, with Dr. Don Martindale, Ph.D., Small Town and the Nation, published by Greenwood Press.

As I have said, Galen was a skilled and experienced public speaker and delivered as many as ten high school commencement addresses each spring at high schools around Minnesota, speaking to hundreds of thousands of people over the years. He also served for a number of years as a "supply pastor" at various churches in central Minnesota, conducting Sunday services, giving sermons, marrying people, burying people.

Both Galen & I were raised in a political family. See, My Political Heroes (many of whom were his, too). My mom was active in the Eisenhower Campaign in 1952. Galen & I were both present with our parents in the lobby of the Koehler Hotel, which Ike & Mamie used as a base when Ike campaigned in Rochester that fall (Ike shook my bro's hand & patted me on the head). Mom had a bit of "power" as district chairwoman in our home district (what used to be known as the "Seventh," back when H. Carl Anderson was Congressman) during the Ike Years & it was not uncommon for political supplicants to come to the house asking for this or that favor (say, an appointment as a rural mail carrier or an appointment to a military academy). I remember Mom hosting a fundraiser & yard speech at our house for Val Bjornson when he was the GOP candidate for U.S. Senate against HHH in 1954. In any event, Galen picked up on all that (as I did) & at one point in the early 1990s, after my mother (whom he cared for in her final illness) died, he came close to running for Congress in our home (renumbered) district. But he chose not to run. I wish he had. Unlike me, he might have won.

Although we had serious or not-so-serious differences in recent years (it doesn't take much for Norwegians to stop speaking to each other for years on end), I have always believed I was lucky to have "Big G" as my bro. In truth, though brothers be separated from each other, they never are really far from the center of each other's heart, and each carries the other with him wherever he goes.

 Friday, 07.30.2005

 Beach rights recognized -- we've had 'em all along, but.... My ex-wife & I owned valuable beach property in a private association on the northern side of Little Traverse Bay of Lake Michigan near Harbor Springs before our divorce & I spent many happy times up there. One of the joys was beach walking. One could go east toward Harbor Springs only so far before one reached the beach "belonging" to one of the most-exclusive associations. There one was greeted by signs saying "No trespassing." Those who did trespass often were met by an association "security officer" & escorted off or told to leave pronto. But if one walked west, toward Grand Traverse Bay, one could walk forever, on the loveliest stretch of beach anywhere in the world. Indeed, I've never known a more naturally lovely spot in my whole life than that strip of beach on the north shore of the little bay from Harbor Springs out to Five-Mile Point. Our attitude at our place was prompted by the Golden Rule: how could we complain of beach walkers if we expected others not to complain about our beach walking. I have always maintained that the beaches there were nature's public walkways separating property owner from the lake, which is owned by all, & that the right to walk on the beach along the water's edge was a public right. Thanks to a brave lady who fought the matter the whole way to the Michigan Supreme Court, this is now recognized as "the law" in Michigan. See, State's top court rules beach walking is o.k. (Detroit Free Press 07.30.2005). Text of opinion. One person can make a difference for thousands. Update: SCOTUS declines review, leaving state supreme court's ruling undisturbed (Detroit Free Press 02.21.2006).

So where does my position on this issue place me? I don't know. I was with "the conservatives" in the recent USSCt case in opposing use of eminent domain to take private residential property to resell to wealthy private developers to use to build condos. I guess I'm with "the liberals" on this one, because the conservative Chamber of Commerce folks & the wealthy landowners tried to persuade the Mich. court to rule other than it did. Just say, I'm with "the common pee-pull," as Abe Lincoln would say.

 Monday, 07.25.2005

 Man sentenced to prison for beating wife with Bible. "A man accused of beating his girlfriend on Halloween with a Bible has been sentenced to 7 years and 11 months to 15 years in prison...." More (Detroit Free-Press 07.24.2005). Comment. Beating one's wife with a Bible is sort of a metaphor for what some of the Fundamentalist Christians who have taken control of the Republican Party want to do to the rest of us in America and elsewhere. Beating people over the head with the Bible won't convert anyone, here in America or elsewhere, including in Iraq. The drawing power of Christianity has always been the person & message of Jesus, who taught the world that the only law was the law of love & forgiveness. The Bible pounders, however, see Christianity as a set of rules &, not surprisingly, their judicial hero, Justice Scalia has made clear in his opinions and in his extrajudicial writings -- see, e.g., A. Scalia, "The Rule of Law as the Law of Rules," 56 U. Chi. L. Rev. 1175 (1989) -- that he is a believer that the "Rule of Law" basically ought to be a "Law of Rules." His rules usually turn out to be rigid, often harsh ones, clear to him but not so clear to the rest of us. Cf, Judge praises Love (Courtney, that is) (U.K. News Launch 07.25.2005).

 Friday, 07.22.2005

 Federal judge strikes down political lawn sign ordinance. "A federal court struck down an Adirondack town's ordinance about the display of political yard signs Thursday, saying the law was an unconstitutional restriction of free speech. The ordinance adopted in 2003 allowed lawn signs to be posted only 30 days before events, including elections. Violators faced a fine of up to $100...." More (Newsday 07.22.2005). Comment. We spoke to this issue in detail in a previous posting, Political lawn signs - law & etiquette.

 Wednesday, 07.20.2005

 Women lose rights in draft Iraqi constitution. "A working draft of Iraq's new constitution would cede a strong role to Islamic law and could sharply curb women's rights, particularly in personal matters like divorce and family inheritance. The document's writers are also debating whether to drop or phase out a measure enshrined in the interim constitution, co-written last year by the Americans, requiring that women make up at least a quarter of the parliament...." More (N. Y. Times 07.20.2005). Comment. Looks like President Bush has succeeded in bringing "Freedom!" to Iraq. Before we got there, Iraqi women were among the freest in the Middle East, especially in Baghdad. Now it looks like the Shiites are trying to turn it into another Iran. Heck, we'd have done more for freedom if we'd sent some B-52s loaded with XM & Sirius satellite radios, with prepaid subscriptions, & dropped enough of them for every Iraqi to have one. It'd have cost way less than one per cent of what we've spent invading & occupying Iraq, the 25,000 Iraqis we've killed would still be alive, & all the American soldiers who've been killed & wounded would now be walking the streets of small-town & urban & suburban America enjoying their own lives & freedom.

 Sunday, 07.17.2005

 On moderates without courage or imagination. "The center is weak in Washington because most moderates lack guts and ideas. They lack the courage to take on party leaders, and so almost always buckle when the heat is on. Furthermore, they have no cadres of foundations, think tanks and scholars to give them intellectual heft. You go to a liberal or conservative organization's dinner and the room is filled with scholars and writers. You go to a centrist dinner and the room is filled with lobbyists...." David Brooks, In Troubled Times, Bring on the Spartans, N.Y. Times 07.17.2005). Comment. Exhibit #1: our self-defined "main-street" & "moderate" Republican representative here in Minnesota's Third Congressional District, Jim Ramstad. Politicians like him always manage to have a couple issues on which they "break" with their President. Whenever anyone challenges their courage or independence, they point to their stands on these issues. Anthony Trollope, in Phineas Finn (1869), the second of the six Palliser novels, was speaking of representatives like Rep. Ramstad when he wrote, "A member's vote,-- except on some small crotchety open question thrown out for the amusement of crotchety members,--was due to the leader of that member's party." Keep an eye on Jim & you'll see what I mean. He's independent on things that don't matter so much in the scale of things. But on the most important issue, whether to pre-emptively invade Iraq on the weakest of evidence that Iraq presented any threat to us, he may have publicly postured and publicly anguished over this or that but ultimately he was with & has been with the President all the way. The sad thing is, so many in Congress were suckered into voting for an unjustified war that it's going to be hard to get out. Why? Because no one in public life will admit he was suckered into anything. It shows bad judgment. What to do? Some of them have tried to blame the CIA for bad intelligence. "If we'd had good intelligence, we might have voted differently." But the plain truth is that even if true, the case made by the President & Co. was insufficient to justify the war. I don't know which is worse, a Member of Congress who's a sucker or one with bad judgment. Those who voted for the war, including Mr. Ramstad, are both. The only thing sadder than the weak and unimaginative "moderates" who didn't dare stand up to the President are the Democrats who didn't stand up to him & have offered no real alternatives, including the newest "moderate" among Democrats, Hilary Clinton (before we know it, she'll do a Norm Coleman & switch parties). The other day she offered her imaginative solution to the mess we're in in Iraq: increase the size of the army by 80,000 soldiers. More (MSNBC 07.14.2005). And then what? The reinstitution of the draft, of course. You may have missed it but in early 2004 she pretty much made her preference for a draft rather than an all-volunteer army known. More (MSNBC 02.25.2004). Parents, take note. As I said in my quixotic primary campaign against Rep. Ramstad last year, next time around your sons and your daughters are going to be vulnerable:

While that ill-advised war is costing us the lives of more and more of our soldiers and hundreds of billions of dollars, it seems to me we ought to be talking of little else than how to end it on our own terms and bring home the brave troops -- many of whom are serving there against their will through the President's misuse of the National Guard and the so-called back-door draft, both of which I've opposed. Before we know it, despite the Administration's repeated denials, we'll be hearing about the reinstatement of the draft, which this time around will necessarily involve the conscription, on equal terms, of not just our sons but our daughters. Nonetheless, if you watch the vacuous campaign ads on TV and listen to the candidates' empty rhetoric, you'll hear as little about these things as the candidates think they can get away with saying.

 Friday, 07.08.2005

 White House says cartoon character has no place in this world. "White House spokesman Scott McClellan...said smugly that Memin [Pinguin, a popular Mexican cartoon character described by Rev. Jesse Jackson as a racist stereotype] ha[s] 'no place in today's world,' and left many Mexicans wondering who granted him the authority to decide whether Memin belongs in Mexico or not. McClellan probably doesn't know much about the subject, but I do. Describing Memin Pinguin as a racist stereotype is an outrageous misrepresentation of the character's character...." More (L.A. Times 07.08.2005). Comment. This is a terrific commentary by Sergio Munoz, who is an editorial writer at The L.A. Times. In my opinion, it makes both McClellan and Jackson look like fools.

 Thursday, 07.07.2005

 Terrorists catch America asleep on 09.11. President is busy reading books to little kids and looking dazed after being whispered the news. Draft-dodging Presidential advisers quickly see this as pretext to correcting what they believe was a mistake by Colin Powell in Gulf War I, to wit, not invading Baghdad & taking out Saddam Hussein. President, declaring unending War on Terror, becomes a "war President," & is thereby allowed to strut even more than before. Congress, in bandwagon mode, passes a liberty-robbing so-called "Patriot Act" they haven't read. (Thanks, Senator Feingold, you were listening when your mom taught you not to be afraid to say no.) President gets Congress to invade Afghanistan. Prisoners of war are sent to Guantanamo Bay, Cuba, & held for years without hearings or other protections of Geneva Conventions. Some prisoners are tortured. Emboldened by "their" quick success, draft-dodging Presidential advisers strut around talking about what a danger Iraq is to the world's only "super power." Texas President uses the old Lyndon Johnson/Texas bait-&-switch to sucker Congress into a pre-emptive, non-defensive invasion of Iraq. President, wearing flight jacket, gets to pretend he's a military hero & declares victory in a setting-sun photo-op aboard an aircraft carrier. But -- despite the victory that is so hollow -- young men & women still keep coming home without their legs or, worse, in body bags, in ever-increasing numbers. Some advisers talk about staying in Iraq for ten or twelve years. Texas President insists, as our last Texas President did, that we'll "stay the course" because our Freedom depends on it. First-Amendment-protected Pulitzer-Prize-winning reporter is sent to jail for protecting her source. Terrorists launch major attack on London, reminiscent of their attack on U.S. on 09.11.

At some point, maybe you ought to say something -- for example, that you've had enough of Bush's brilliant approach to protecting us here at home by sending our National Guard to die in Iraq. Or are you waiting until your son or daughter gets drafted & sent over there to "defend Freedom"? Maybe the test you should apply ought to be whether you, old man or woman, would be willing to go over there to "defend our Freedom." Now we're getting somewhere -- you really don't believe in any of it, do you?

 The Fourth of July 2005

 1802 Fourth of July Oration - by Rev. John Leland (1754 - 1841 (son of Massachusetts, Baptist minister & leader of Baptists in Virginia, ally of Jefferson & Madison, supporter of Bill of Rights, supporter of religious freedom & of disestablishment in New England):

...Disdain mean suspicion, but cherish manly jealousy; be always jealous of your liberty, your rights. Nip the first bud of intrusion on your constitution. Be not devoted to men; let measures be your object, and estimate men according to the measures they pursue. Never promote men who seek after a state-established religion; it is spiritual tyranny -- the worst of despotism. It is turnpiking the way to heaven by human law, in order to establish ministerial gates to collect toll. It converts religion into a principle of state policy, and the gospel into merchandise. Heaven forbids the bans of marriage between church and state; their embraces therefore, must be unlawful. Guard against those men who make a great noise about religion, in choosing representatives. It is electioneering. If they knew the nature and worth of religion, they would not debauch it to such shameful purposes. If pure religion is the criterion to denominate candidates, those who make a noise about it must be rejected; for their wrangle about it, proves that they are void of it. Let honesty, talents and quick despatch, characterise the men of your choice. Such men will have a sympathy with their constituents, and will be willing to come to the light, that their deeds may be examined....

 On Adams & Jefferson & Independence Day: Although the Second Continental Congress, meeting in Philadelphia, formally declared America's independence on July 4, 1776, the more important vote, on whether to declare independence, occurred on July 2, two days earlier. Thus it was that John Adams, in his famous letter from Philly on July 3 -- to his wife, Abigail Smith Adams, back home in Braintree, Massachusetts -- predicted that "The Second Day of July 1776" would be "the most memorable Epocha in the History of America." Here's what he wrote:

Yesterday the greatest Question was decided, which ever was debated in America, and a greater perhaps, never was or will be decided among Men. A Resolution was passed without one dissenting Colony 'that these united Colonies, are, and of right ought to be free and independent States, and as such, they have, and of Right ought to have full Power to make War, conclude Peace, establish Commerce, and to do all the other Acts and Things, which other States may rightfully do.' You will see in a few days a Declaration setting forth the Causes which have impell'd Us to this mighty Revolution, and the Reasons which will justify it in the Sight of God and Man. A Plan of Confederation will be taken up in a few days.But the Day is past. The Second Day of July 1776, will be the most memorable Epocha, in the History of America.- I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival. It ought to be commemorated, as the Day of Deliverance by Solemn Acts of Devotion to God Almighty. It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfire and Illuminations from one End of this Continent to the other from this Time forward forever more....You will think me transported with Enthusiasm but I am not. - I am well aware of the Toil and Blood and Treasure, that it will cost Us to maintain this Declaration, and support and defend these States. - Yet through all the Gloom I can see the Rays of ravishing Light and Glory. I can see that the End is more than worth all the Means. And that Posterity will tryumph in that Days Transaction, even altho We should rue it, which I trust in God We shall not.

Fifty years later, on July 4, 1826, the Golden Jubilee of the Declaration, both Adams and Jefferson died. Interestingly, Jefferson fell into a state of semi-consciousness two days earlier, on July 2, the 50th anniversary of the vote to declare independence. On the 4th, shortly before he died, Jefferson woke briefly and inquired whether it was yet the 4th. He died around noon. Adams died in the afternoon a few hours after Jefferson died. Shortly before he died, not knowing Jefferson had died but aware that he, Adams, was dying, Adams declared, "Jefferson still lives." (The truth is, they both still live.) We think of Jefferson in connection with the Declaration, because he drafted it. But as Daniel Webster said in August of 1826, in a great speech [click here] paying tribute to the two men, "[T]he general opinion was, and uniformly has been, that in debate, on the side of independence, John Adams had no equal. The great author of the Declaration himself [i.e., Jefferson] has espressed that opinion uniformly and strongly. John Adams, said he...was our colossus on the floor. Not graceful, not elegant, not always fluent, in his public addresses, he yet came out with a power both of thought and of expression, which moved us from our seats..."

Herewith is a sample of that "power of thought and of expression" that "moved them from their seats" -- what Adams said, in countering the argument of Hancock, who, arguing for delay, expressed fear that they would be arrested by British forces and hung as traitors. Said Adams: "Sink or swim, live or die, survive or perish, I give my hand and my heart to this vote. It is true, indeed, that in the beginning we aimed not at independence. But there's a Divinity which shapes our ends. The injustice of England has driven us to arms; and blinded to her own interest for our good, she has obstinately persisted, till independence is now within our grasp. We have but to reach forth to it, and it is ours."

I think it merits pointing out that both Jefferson and Adams were lawyers. But since this is the age of narrow-focused specialized lawyering, it merits even more emphasis that Adams and Jefferson were the kind of lawyers we don't see much of these days, lawyers who, as Thomas H. Benton put it, "mixed literature and science with their legal studies and pursuits...." (BRH - 07.01.2001)

 Thursday, 06.23.2005

 'Liberals' on Court approve taking from the poor to give to the rich. Some working-class homeowners in New London, Conn., bought modest houses in a pleasant area near a river. Over the years the houses perhaps haven't been thought the most desirable. But times changed & some private developers with access to large sums of money cast covetous eyes on the land on which the homes rest & decided it'd make good sense (& good dollars) if they bought all the cheap little homes, ripped 'em down, & commercially redeveloped the area into, oh, you know, the usual stuff that tax-hungry municipalities love to see developed -- tax-generating office buildings, stores, hotels, condos. But some homeowners aren't as peripatetically inclined as others, or as willing to take some money & run. Some of the owners have done a lot of living in those homes. One woman has lived in the house over 80 years -- she was born there. These people have felt blessed to live there & at times maybe have even entertained the thought that there was something sacred about their homes. Perhaps they were even foolish enough -- no, American enough -- to think of their homes as their castles.

It used to be thought that one of the roles of good government was to respect & protect those tiny castles. But now it seems many governments, with their gargantuan appetites for new revenue from real estate taxation, sorta can't resist making exceptions to the quaint old rules that supposedly protected the little guys & gals & they use their raw power under the laws of eminent domain to force the little folks to accept the judicially-determined fair market value of their house as a house as compensation & kind words of "Best wishes in your future life, wherever, whatever...." It's all, of course, in "the public interest."

So how did the Court vote? Surely the "liberals" stood up for the little guys & gals, right? Well, let's see, there were five members in the majority and they were Justices John Paul Stevens, Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Wow, that's good -- the little folks must've won, right? 'Fraid not. These lovers of the little fellow said it was okay for the government to take these houses, rip 'em down & replace them with condos these little fellows can't afford to buy. Too bad, suckers.

But those four remaining hard-nosed, cold-hearted "conservatives" -- O'Connor, Rehnquist, Scalia & Thomas -- what'd they have to say? Did they say the government can not only take the houses but, heck, may do so without paying compensation? No. This is what Justice O'Connor (joined by Rehnquist, Scalia & Thomas) said, in part:

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. "[T]hat alone is a just government," wrote James Madison, "which impartially secures to every man, whatever is his own." For the National Gazette, Property, (Mar. 29, 1792), reprinted in 14 Papers of James Madison 266 (R. Rutland et al. eds. 1983).

That bad dude we've criticized so often, Justice Thomas, dissenting separately, was equally offended by the majority's decision. He wrote:

So-called "urban renewal" programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect "discrete and insular minorities," United States v. Carolene Products Co., 304 U. S. 144, 152, n. 4 (1938), surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse. It encourages "those citizens with dis-proportionate influence and power in the political pro-
cess, including large corporations and development firms" to victimize the weak. Ante, at 11 (O'Connor, J., dissenting).

As the Billy Joel song goes, "And so it goes."

If you think your home is your castle, you're wrong. If you think the liberals are always for the little guys, you're wrong. If you think the conservatives are always for the big guys, the moneyed folks, the corporations, the developers, you're wrong. There's an almost "Eastern" communitarian strain in much soi-disant (a liberal word) liberal thought that stems from the utilitarian theorists, Bentham & Mills; utilitarianism, at its worst, can be oblivious of the rights of the individual. I don't like it. On the other hand, there's a libertarian strain in much conservative thought that I do like; unfortunately, you won't find many of this kind of conservative in the Bush administration. Barry Goldwater was a libertarian conservative: he believed in rugged individualism, supported abortion rights, would have supported stem cell research, didn't like the religious extremists who are out to impose their ways on everyone. The poet, William Blake, wrote: "General Good [of which we hear so many people in public office speak] is the plea of the scoundrel, hypocrite and flatterer. He who would do good to another must do it in Minute Particulars." The majority's decision in the condemnation case is classic utilitarian liberalism; the dissent is classic libertarian conservatism.

 Ralph Nader's views. Incidentally, this is what Ralph Nader just said about today's decision:

Hundreds of abuses of eminent domain have occurred during the last few decades, with municipalities playing reverse Robin Hood‚ taking from ordinary citizens and giving to powerful individual developers or corporations. In many cases, the alleged public benefit is a transparent cover for what amounts to legalized theft. With today's decision, the Court has abdicated its role as guardian of the Constitution and individual rights. This decision authorizes courts across the country to allow self- defining misuses of "public use" and "public benefit" requirements. State courts, however, remain free to impose more reasonable restraints on government taking of individual property.

 What will the effect of the Court's decision be in Minnesota? Probably little. Unfortunately, our state supreme court, in my opinion, has been way too deferential to municipalities when they use condemnation laws to take away people's homes and businesses in order to sell them in turn to private developers for their development schemes. It doesn't have to be this way. First, the legislature could come to the protection of the little guy. Second, the Minnesota Supreme Court is free to interpret the Minnesota Constitution as giving greater protection to homeowners and small businesses from this kind of government-sanctioned corporate thievery. But don't look for such a ruling from the court, as currently constituted.

Further reading:
Condemn-Nation - This land was your land, but now it's my land, Dahlia Lithwick's take on the oral arguments (Slate 02.22.2005).
Ralph Nader & Alan Hirsch, "Making Eminent Domain Humane," 49 Villanova L. Rev. 207 (2004).

 Monday, 06.20.2005

 Provincialism in politics & government. "At least eight Texans are being mentioned as potential Supreme Court nominees as anticipation builds over prospects that President Bush soon may face his first vacancy on the high court....Contributing to speculation that Bush may look to his home state for a nominee -- either now or later -- is the makeup of the administration team that will shape the nomination process. Gonzales, as chief of the Justice Department, and White House lawyer Harriet Miers, a former Dallas corporate lawyer, will be actively involved in the selection. They will work closely with the president's senior adviser, Karl Rove, a former Austin political consultant...." More (Star-Telegram 06.17.2005). Comment. It's called provincialism: "The act or an instance of placing the interests of one's province before one's nation" (The Free Dictionary). "Tolstoy, in an expression that is all but impossible to render in English, described the novelist's work as a process of 'making things appear strange.' Familiarity, he observed, blinds us to what may in fact be astonishing. The writer's task, he argued, is to force us to confront the world as it is, with all its bizarre anomalies." F. Frederick Starr, Escalating the Campaign Against Provincialism (ADE.Org). In other words, he urged the writer to avoid provincialism, even when inspired, as all writers are, by the local and familiar. The President's task is, or ought to be, to overcome that pull toward provincialism in appointments that so many, but not all, Presidents have displayed, and instead go for "the best," which usually isn't someone from one's home state. The President is President of 50 United States, not President of "Moronia" (H. L. Mencken). Not all Presidents have succumbed to the pull of provincialism & cronyism in Supreme Court appointments. "Hoover [a Republican] nominated Chief Judge Benjamin N. Cardozo of the New York Court of Appeals, a Democrat, on the advice of Chief Justice Hughes [a Republican]." Merlo J. Pusey, Court Nominations and Presidential Cronyism (Supreme Court Historical Society 1981 Yearbook). In other words, he truly picked "the best person" available &, in elevating him, elevated himself & the country. Related items. Governors appointing pals to state supreme court.

 Fathers Day 2005

 a) BurtLaw's "Father of the Year - 2005" - Rev. Dr. Norman J. Kansfield. Until earlier this year, Dr. Kansfield was president of New Brunswick Theological Seminary in New Jersey. His daughter Ann, 29, studying to be a minister and engaged to be married, asked him to perform the ceremony. Of course, he did so. What decent father would refuse? For doing so, trustees of the seminary told him they would not renew his contract and he could face other disciplinary action.  On June 17, 2005 a "trial" was held, with the general assembly of the Reformed Church in America sitting in judgment. By a majority vote, the assembly voted that Dr. Kansfield violated church law in officiating at the wedding of his daughter. Punishment will follow, perhaps an admonition, perhaps removal from the church's rolls as minister, perhaps excommunication from the church. Where did Dr. Kansfield go wrong in officiating at his daughter's wedding? Well, it seems that in the church's view, his daughter, Ann, married the wrong person, a woman. In his own defense, Dr. Kansfield said he believed he was "following the spirit and letter of the law." Of course, he was referring to what Christ said was the only law: love. "Ministers were not asked, he said, 'to pledge ourselves to the unity, purity and peace of the church , but to the things that make for unity, purity and peace.'" More (N.Y. Times 06.18.2005). I think I hear echoes of Martin Luther in that. Martin Luther said no man needs a priest to stand between him and God -- every man and woman is his or her own priest. But every girl needs a Teddy-Roosevelt-like "bully father" to stand up for her and talk with her and guide her -- and, if asked, officiate at her wedding, even to a boob (or someone with boobs). Dr. Kansfield has answered "the call" to be a good minister, a good man, and, most importantly, a good dad. In my opinion, any so-called church that condemns him for that ought to re-read the Gospels. More.

 b) From A Father's Day essay about a bully father, by Roger Rosenblatt (PBS.Org 06.14.1996):

There seems to be two kinds of excellent fathers. One is old, austere, dignified to the point of being arch, the kind of father Clarence Day was in "Life with Father." The other remains a kid all his life. Such fathers often have a lot of kids to create playmates for themselves. Theodore Roosevelt was of the second type of excellent father. He looked grown-up or really like a parody of a grown-up, with those little glasses and that great moustache, but everyone knew he was a boy in disguise.

Keystone Ranch, Jan. 29, 1901.    

Darling Little Ethel:

You would be much amused with the animals round the ranch. The most thoroughly independent and self-possessed of them is a large white pig which we have christened Maude. She goes everywhere at her own will; she picks up scraps from the dogs, who bay dismally at her, but know they have no right to kill her; and then she eats the green alfalfa hay from the two milch cows who live in the big corral with the horses. One of the dogs has just had a litter of puppies; you would love them, with their little wrinkled noses and squeaky voices.

 d) From "Of fathers & small-town barber shops & fishing & walleye beer batter":

One summer day in 1952, when I was nine years old, I was getting a haircut in one of the chairs at C. K. ("Goose-o!") Brenden's Paris Hotel Barbershop, when Bill McAllister came in to get his daily shave and shoot the breeze with "the boys." Bill had been a traveling casket salesman from Ohio, I believe, back in the 1920's. A handsome man, he became enamored of Anna Hoiland, daughter of the owner of Hoiland's Mortuary & Furniture Co. (for some reason, the two, caskets & furniture, always were sold by the same guy in small-town America). Bill & Anna got married and.... More at BurtLaw on Fathers & Kids.

 Friday, 06.17.2005

 From Onward, Moderate Christians (N.Y. Times 06.17.2005), by John C. Danforth, who is an Episcopal minister & former Republican U.S. Senator from Missouri:

[M]oderate Christians see ourselves, literally, as moderators. Far from claiming to possess God's truth, we claim only to be imperfect seekers of the truth. We reject the notion that religion should present a series of wedge issues useful at election time for energizing a political base. We believe it is God's work to practice humility, to wear tolerance on our sleeves, to reach out to those with whom we disagree, and to overcome the meanness we see in today's politics.

 Friday, 06.10.2005

 "I think Bush is an impostor -- a pretender. He couldn’t find a mandate, so he found a war...."
     - Former Senator Eugene McCarthy, quoted in Calvin Tompkins, Clean Gene (The New Yorker 01.19.2004).

"Wrong to go to war, and wrong to stay...."
     - Susan Schuman, member of Military Families Speak Out, mother of a soldier who served in Iraq, quoted in 2004.

"I admit, sometimes in life we have to 'sin bravely,' as Martin Luther said. Is this such a time? Cheney & Bush haven't convinced me yet. Have they convinced you? If Ike were President, would he be leading us into war? Unlike Cheney & Bush, Ike had been a soldier himself and knew personally what war is all about -- which is perhaps why military men often are the main voices of restraint and caution, of Reason, in matters like this."
     - Burton R. Hanson 09.20.2002 (I'm doing what egomaniacs & politicians do, quoting myself. This is what I wrote in September 2002 as our leader, Mr. Bush, pretended it was necessary to invade Iraq pre-emptively to protect our country.)

"I think the country is in some danger. You see how a pretender can take over the throne. Whether it’s a democracy or a monarchy, a pretender generally starts a war. But what a pretender can do under our Constitution is an interesting question...."
     - Former Senator Eugene McCarthy, quoted supra.

 Wednesday, 06.01.2005

 I just received the Spring 2005 issue of the Harvard Divinity Bulletin in its new, much-improved magazine-style format. It's filled, as usual, with provocative articles, including one by the noted theologian, Harvey Cox, occasioned by a) his study in preparing lectures for "a Yale-Harvard Travel/Study Seminar to Spain and Morocco...one that bears the title 'Co-Existence of Faiths and Cultures,'" and b) his re-reading, in that connection, the great novel by Miguel de Cervantes, Don Quixote. He writes that "Some critics believe that Cervantes's novel [published in 1605] is an eloquent lament for [the] lost golden age" known as "convivencia," which he describes as follows:.

[In] that section of medieval Spain called Andalucia, and [in] Morocco...a splendid, thriving, brilliant interfaith civilization flourished from the seventh until the twelfth centuries. The Spanish historian Américo Castro has called it the age of the convivencia, when peoples and cultures not only tolerated one another but also actively engaged one another, and drew on one another's artistic and spiritual resources while maintaining the integrity of their own traditions. In this region, under Muslim rule, Jews, Christians, and Muslims lived together in relative harmony....

Perhaps, Cox concludes, we are not condemned to the "clash of civilizations" that one heard so much about in the days immediately following 09.11.

Almost immediately after 09.11, I warned against taking hasty, ill-thought action that might play into the hands of those who want a "clash" and thereby make matters worse. It strikes me that that is exactly what the Bush Administration has done -- play into their hands and make matters worse. But I've felt that for a long time.

 Tuesday, 05.31.2005

 Nick Coleman, who may be the best columnist in any Minnesota daily newspaper, devoted his column Sunday to Herbert W. Chilstrom, the retired presiding bishop of the Evangelical Lutheran Church in America. Rev. Chilstrom, who used to think differently, has become a strong supporter of same-sex unions:

Slavery, racial prejudice and sexism were accepted by Christians until they turned to the roots of their faith and applied the underlying principles of scripture to the modern world, he says. And it is the same with equal rights -- including the right to recognized legal unions -- for homosexuals...'In the course of our lifetimes, we change our minds about things we once thought were settled forever,' he says. 'This has really become a justice issue. Gays are being treated unjustly, both by the church and by society. And it is not God's way. Any true conservative who cares about stability in our society ought to support gay unions, and ought to bless these relationships.'"

Coleman, who agrees with Chilstrom on this issue, says he is not surprised that a retired Lutheran bishop is leading the way. He says, "As I always say, Lutherans are the last, best hope for mankind." More (Minneapolis Star-Tribune 05.29.2005).

Last summer, in preparing a position paper on the subject of same-sex marriage in my modest primary campaign for Congress as a liberal anti-war Republican, I rather surprised myself -- as I have been wont to do throughout my life -- by following the facts and logic to reach a different conclusion than I thought I would reach at the outset, i.e., by doing what ideologues and fundamentalists of all persuasions are temperamentally unable to do. In doing that, I found myself deciding that, despite its being a loser of an issue, I supported the recognition of the right of same-sex marriage as a matter of civil law, as opposed to canon or religious law. I based this decision on a number of things (see, marriage & the law position paper), not the least being my having noted the haunting similarity between the current drive to amend the Constitution to forbid states' recognition of same-sex marriage to the long-discredited but once-highly-popular drive to amend the Constitution to ban inter-racial marriages in all the states.

I am delighted that Bishop Chilstrom still has the ability to surprise himself, too. He makes me prouder than I already was of my Norwegian-Lutheran heritage.

Copyright (c) 2005 by Burton Randall Hanson.
E-mail: BurtonHanson@BurtonHanson.com.