One of several important breakthroughs in political science our Founding Fathers achieved, is the establishment of an entirely new category of law; namely, the Constitution. The Constitution is the nation’s highest legal and moral authority—popularly accepted as such. Yet its ratification took place over 200 years ago, amongst a generation long since dead and gone. Charles Kesler, professor of government at ClaremontMcKennaCollege , says “Thus for Americans, the oldest law is the highest law.” And he continues to point out how unique this is among nations:
This is not a normal or an automatic outcome of popular government.
Most of the time, republics and the people who move their politics
tend to think that if they make a law “A” one day, and a law “B” that
contradicts “A” the next day, the newer law supersedes the old. What
is unusual about the Constitution is that this rule is completely reversed
in respect of it. The oldest law is the most authoritative, and is indeed
the only law that “the people” as such have ever passed. Other law is
statute law, law made by representatives of the people. Thus every
other law needs to be adjudged in light of the only law that is genuinely
ours, the Constitution.
Clearly, some would prefer that the Constitution evolve and stay up with the times. There is even a modern liberal legal theory that affirms a so-called “living Constitution.” This is another way of saying the Constitution means what lawyers and judges say it means.
Besides the Constitution as a category of law, the Founders also bequeathed an aspect of culture, which helped to give the Constitution stability and its impressive longevity. Historically a part of America ’s democratic culture, the aspect has sadly deteriorated as “living Constitution” theory advances. I’m referring to political civility, the idea that citizens will be civil to one another despite political disagreements. The disagreements are less important than the resolve to remain fellow citizens. Of course, a necessary precondition for this type of civility is that citizens do agree on certain fundamentals, so that disagreements really involve secondary issues. This is possible when the central government remains limited, or when fundamentals are settled at State and local government levels. The War Between the States was a time when folks (rightly and wrongly) disagreed on fundamental issues, which the federal government could not leave to States or localities. With discrete fundamentals settled on the battlefield, we’ve stayed more or less civil since Reconstruction.
Today I wonder about the Founders’ great handiwork. Though altered much, it has survived in large measure. But I worry as civility departs, because government has grown too big and too intrusive in matters belonging outside its scope. I worry as respect for the Constitution itself declines, when citizens fail to distinguish rights from their desires, and political expediency supplants principle. During the last presidential election, people were tempted to say the popular or consolidated national majority (pure democracy) should rule the day—even though the constitutional majority entails both democracy and federalism and is the only majority that may govern the United States as a free country. What would George Washington have thought of the spectacle? The first president was quintessentially both civil and constitutional, in his personal example and professional conduct. He was also straightforward and literate. The following is taken from his Circular Letter of 14 June 1783, but Washington ’s words ring true today:
The foundation of our empire was not laid in the gloomy age of Ignorance
and Superstition, but at an Epoch when the rights of mankind were better
understood and more clearly defined, than at any former period; the researches
of the human mind, after social happiness, have been carried to a great extent;
the Treasures of knowledge, acquired through a long succession of years, by
the labors of Philosophers, Sages and Legislatures, are laid open for our use,
and their collected wisdom may be happily applied in the Establishment of our
forms of Government; the free cultivation of Letters, the unbounded extension
of Commerce, the progressive refinement of manners, the growing liberality
of sentiment, and above all, the pure and benign light of Revelation, have had
a meliorating influence on mankind and increased the blessings of Society. At
this auspicious period, the United States came into being as a Nation, and if
their Citizens should not be completely free and happy, the fault will be entirely
Wesley Allen Riddle is a retired military officer with degrees and honors from West Point and Oxford . Widely published in the academic and opinion press, he serves asState Director of the Republican Freedom Coalition (RFC) and is currently running for U.S. Congress (TX-District 25) in the Republican Primary election scheduled April 3, 2012. His newly released book, Horse Sense for the New Millennium is available on-line and at most bookstores.Visit: www.WesRiddle.com.
I was pleased to see that, in the Presidential debate in South Carolina Monday night, Newt Gingrich came out in support of a proposal I presented in testimony before Congress on February 2011. It deals with the issue of extended unemployment benefits and is called “train while you claim.” Here is an excerpt from that testimony:
“I recommend that, as a condition for receiving extended unemployment benefits, recipients would have an option to “Train While They Claim”. Those without a high school diploma could choose to study for their GED. UI claimants in that category would be entitled to first priority for participation in existing federally funded Adult Basic Education programs.
Those with a high school degree, but lacking specific vocational training, would be able to receive job skills training. Again, this would not require an increase in federal funding, but simply give claimants top priority to participate in existing federally funded training programs.
Alternatively, those who don’t choose to get a GED or receive additional skills training would be required to gain additional on-the-job experience or training by volunteering for community service work for public institutions or approved non-profits like Habitat for Humanity. Those who refuse to participate in one of these three options would no longer be entitled to receive extended unemployment benefits.”
To me, this is a commonsense approach for providing the unemployed with additional skills while they look for work as well as dropping from the rolls those who want to “game the system.” The full testimony to the Subcommittee of Human Resources of the House Ways and Means Committee can be found here:
Like many Americans, I had more than my fill of three things this holiday season: turkey, egg nog, and movies.Not just the big, splashy blockbusters, mind you, like “Mission Impossible: Ghost Protocol,” but also those smaller art-house films that become critical darlings and Oscar favorites.But now, just as I resign myself to the filmgoer’s malaise that accompanies the string of movies released early in the year that won’t light up the box office or garner golden statuettes, I’ve realized that there is an endless source of almost cinematic entertainment waiting for me down at the courthouse.So forget your local multiplex and come with me to see what’s playing at a courthouse near you (and don’t forget the popcorn),
If you liked films like “The Parent Trap” or any movie with identical twins who get themselves into sticky situations where hilarity ensues, then you’ll love the case of State of Missouri v. Darrel W. White, Jr. in Jackson County, Missouri (not far from Kansas City).Criminal defense attorney Dorothy Savory was representing the defendant at a preliminary hearing on charges of robbery.When the victim was asked to identify the man who snatched her purse, she pointed to “Mr. White,” the gentleman sitting next to Savory at the counsel table, as her assailant.However, in the hall outside the courtroom, the arresting officer noticed a familiar-looking person getting off the elevator—Darrel W. White, Jr.In short order, it was revealed that the man next to defense lawyer Savory was the defendant’ identical twin brother, Darion White.Both prosecutor Jean Baker and Judge Kenneth R. Garrett III were furious at the switcheroo.Although Ms. Savory was reportedly mystified at the fuss and the allegation that her conduct was deceptive, Judge Garrett pulled no punches, calling her actions “disrespectful” and continuing the hearing until contempt charges (and possible disciplinary action) against the defense attorney could be considered.That’s what I call “double trouble.”
If your tastes run more to horror flicks like “Paranormal Activity,” then check out the criminal charges pending against former police officer Joseph Hughes of Mount Gilead, Ohio.Hughes was facing 20 charges, including theft and possession of stolen property, after a slew of stolen air conditioners and other goods (many belonging to the county) was found inside Hughes’ home.The case took a supernatural turn when Hughes attempted to explain why he was unaware that all those stolen goods were in his basement.“We believed that there was some kind of paranormal presence in the basement,” Hughes testified.“It sounds kind of ridiculous but there was evidence to support it.”The “paranormal defense” shocked prosecutors.Tom Elkinof the Morrow County Prosecutor’s Office said “I’ve been practicing since 1983 and I can say that’s the first time I’ve heard of paranormal activity in the course of a trial.”As it turns out, Hughes’ defense didn’t stand a ghost of a chance; he was found guilty of 18 out of 20 charges.
Of course, if your preferences are for more Disney-style family fare, along the lines of “All Dogs Go to Heaven,” then follow the lawsuit recently filed in New York City by dog owner Elena Zakharova against an Upper East Side pet store known as Raising Rover.Zakharova claims that the pet shop sold her Umka, a Brussells Griffon which was represented to her as healthy but which allegedly has bad knees and bad hips.What makes Ms. Zakharova’s lawsuit unusual is that she does not want just compensation for Umka’s vet bills (which exceed $4,000); she also wants compensation for the dog’s pain and suffering and recognition by the court that companion animals are not inanimate property but “living souls.”I’m not sure a court will be able to make such a declaration, but I’m cheering for Ms. Zakharova and little Umka anyway—all dogs go to heaven, as Disney fans will attest.
Of course, if your movie of choice is a grisly horror flick full of dismemberment and “creative” deaths like the “Saw” or “Final Destination” movies, then a recent Illinois appellate court decision will make lively reading.The bizarre case began with an unusual set of circumstances.In 2008, 18 year-old Hiroyuki Joho was hurrying to catch an inbound Metra train in the Chicago suburb of Edgebrook when he was struck by a southbound Amtrak train traveling at over 70 mph.In a lawsuit that even one of the lawyers involved described as “very peculiar and gory and creepy,” a passenger waiting on the southbound platform, 58 year-old Gayane Zokhrabov, was struck by “a large portion” of Joho’s body.The flying body part knocked her to the ground, injuring her shoulder and breaking her leg and wrist.Zokhrabov sued Joho’s estate, and a Cook County judge dismissed the case.But the Illinois appeals court disagreed, and in an opinion worthy of a law school exam hypothetical reasoned that it was “reasonably foreseeable” to Joho that a high-speed train could kill him, sever his body, and fling body parts down the tracks at a platform full of waiting people.Hollywood special effects people, get your moving trains and flying body parts ready.
Finally, if a romantic comedy where two people “meet cute” under unusual circumstances and eventually fall in love (like “When Harry Met Sally” or virtually any Sandra Bullock or Julia Roberts movie) is your cup of tea, then check out another lawsuit pending in suburban Chicago.Stickney, Illinois police officer Chris Collins is apparently a lonely guy.On October 22, 2011, the 27 year-old officer pulled over Evangelina Paredes for speeding and issued her a $132 ticket.But he couldn’t get the comely motorist off his mind, and he allegedly searched her motor vehicle records for her address before leaving a handwritten note on her car windshield outside her apartment two days later.The alleged note said “It’s Chris . . . that ugly bald Stickney cop who gave you that ticket.I know this may seem crazy and you’re probably right, but truth is I have not stopped thinking about you since.I don’t expect a girl as attractive as you to . . . even go for a guy like me, but I’m taking a shot anyways.”The alleged note continues saying he’d understand if Ms. Paredes didn’t respond, but that “hey, I did cost you $132—least I can do is buy you dinner.”
Awwh.Unfortunately, one woman’s cute is another woman’s creepy, and Ms. Paredes has filed a federal court lawsuit against Officer Collins, his police chief, and the village of Stickney.The lawsuit alleges invasion of privacy and stalking that has caused Paredes to “suffer great fear and anxiety.”It also accuses Collins of using his “authority and position as a police officer not to protect the public, but to attempt to manipulate the plaintiff into going out on a date with him.”Not exactly a Hollywood ending.Can’t you just see a movie version (with say, Eva Mendes as Ms. Paredes and Ryan Reynolds as Officer Collins) where, after a hilarious chain of events, the two meet up again in a climatic courtroom scene and realize that it’s true love after all?I guess not, but the courthouse can still be as entertaining sometimes as the movies, and admission is free.
The Reverend Doctor Martin Luther King, Jr. was born January 15, 1929. He was assassinated in 1968. “MLK Day” as it were, is celebrated the third Monday in January close to the time of his birthday. One may ask how such a short life should warrant a federal holiday. Martin Luther King, Jr. never was elected to public office. His life was controversial while he lived it. Moreover, his memory is skewed given that FBI files were sealed under court order until 2027. These records were not accessible to lawmakers, who voted for his holiday in 1983. The measure nevertheless passed with bipartisan support and by large margin before Ronald Reagan signed it into law.
Martin Luther King, Jr. still evokes an ecstatic memory from his admirers, and the man has become something of an icon too. That is to say, the representation of high ideals and idealism is separate and distinct from his actual biography. Of course the same can be said of many others, including Lincoln and Jefferson. Great men are often given a public pass on their blemishes and shortcomings. Historians are or ought to be a bit more circumspect.
The reason for the Day, and celebrating the life of MLK involves the issue of race. Martin Luther King, Jr.’s work was important in achieving a Second Reconstruction so-called, i.e., the end of segregation and the application of rights past state laws based upon the Fourteenth and Fifteenth Amendments.
Martin Luther King, Jr. attended segregated public schools in Georgia. After that he went to MorehouseCollege in Atlanta and then to Crozer Theological Seminary in Pennsylvania. At Crozer he was elected president of a predominantly white senior class. He then proceeded to BostonUniversity where he earned his Ph. D. in 1955 and met his wife Coretta Scott. They would have two sons and two daughters together.
After educational and professional preparations, King launched himself into the pastorate first in Montgomery, Alabama and then in his native Atlanta, Georgia. At the same time he dedicated himself to political activism throughout the South, in order to end “Jim Crow” discriminatory statutes. As a member of the executive committee of the National Association for the Advancement of Colored People (NAACP) he led the Montgomery bus boycott lasting 382 days. This led to a Supreme Court decision ending bus segregation. During the days of the boycott, King was arrested and subjected to personal abuse, and his home was bombed.
In 1957 he was elected to head the Southern Christian Leadership Conference, from which he provided new leadership for the burgeoning civil rights movement. King employed the teachings and techniques of Henry David Thoreau and Mahatma Gandhi. His enduring success is largely attributable, however, to skilful adaptation of widely accepted American values, including the rule of law—albeit, through aggressive non-violence; as well as strong appeal to common spiritual beliefs, especially in the South, about God and the moral worth and dignity of man, and to Christian values of forbearance and brotherly love. His historicism was Lincolnesque and so helpful, in that he emphasized the text of the Declaration of Independence, characterizing that document as a promissory note as yet unfulfilled. Thus he appealed to American patriotism, while strongly criticizing social norms regarding race.
In the eleven year period from 1957 to 1968 Martin Luther King, Jr. traveled more than six million miles, gave over twenty-five hundred speeches, wrote five books and numerous articles, consistently preaching against racial hatred and injustice. His activity is largely credited with changing the conscience of America on the subject of race. In 1963 he directed a peaceful march on Washington, D.C. of 250,000 people and delivered perhaps his finest address, “I Have a Dream” from the steps of the Lincoln Memorial. In 1965 he led 30,000 people on a march from Selma, Alabama to Montgomery, where he demanded that black people be allowed to vote without unfair restrictions. The speech televised to a national audience, as well as the Selma march and various protests he orchestrated, stirred general unrest in the South and American cities, leading to the passage of the Civil Rights Act of 1964 and Voting Rights Act of 1965.
In 1964 he became the youngest man to have received the Nobel Peace Prize, turning over that considerable cash prize to the furtherance of civil rights. The iconic ideal he articulated at the Lincoln Memorial is still one of the highest domestic hopes in the land. It has come to define what we mean by a just equality. Speaking of his four little children, he said “I have a dream that … one day” they “will live in a nation where they will not be judged by the color of their skin but by the content of their character.”
Wesley Allen Riddle is a retired military officer with degrees and honors from West Point and Oxford. Widely published in the academic and opinion press, he serves asState Director of the Republican Freedom Coalition (RFC). This article is from his newly released book, Horse Sense for the New Millennium available on-line atwww.WesRiddle.net and from fine bookstores everywhere.Email:
One of the many advantages that being president confers is the opportunity to shape the judiciary—potentially for decades to come—through lifetime appointments to the federal bench.The American Bar Association, through its bipartisan Standing Committee on the Federal Judiciary that evaluates the professional qualifications of prospective nominees, has played an important role in advising presidential administrations since the days of Eisenhower.In recent years, the ABA came under fire when it was accused of having its ratings reflect a liberal bias against judicial candidates from conservative political backgrounds.President George W. Bush, in fact, in 2001 ceased providing the ABA with the names of those he was considering nominating to the bench (the ABA’s Committee rated them anyway, the nominations).When President Barak Obama took office in January 2009, he publicly reinstated the ABA panel to its role in this prenomination selection process.There’s been just one problem—a significant number of the names provided by President Obama have been rated as flat-out unqualified by this bipartisan, blue ribbon panel, and the president is not happy about it.
I wish I could give you the names of these prospective judges.Unfortunately, because the Obama administration has decided against going through with their nominations, both their identities and the critical reviews that sunk them have not been made public.However, what known is that virtually all of them are women and/or minorities, and the White House is not pleased about the low ratings, expressing what The New York Times described as “growing frustrations with the ratings over the past year and a half.”In particular, the Obama administration has questioned whether the ABA Committee has placed too much emphasis on courtroom experience, saying this could have “a disparate impact on female and minority lawyers because they may have been less likely to become litigators.”This is clearly a sore point with President Obama, since he has made it a policy to appoint more diverse candidates (and, indeed, his nominees are more likely to be women or minorities than those of any of his predecessors).
The result of Mr. Obama’s dash to diversity at the risk of actual qualifications is a rate of negative ratings from the ABA Committee that is nearly 4 times as high as either of his predecessors.President Bill Clinton submitted about 440 prospective judicial nominees, and only 4 of them received a “not qualified” rating.Approximately 365 of President George W. Bush’s nominees were vetted (after the fact), and only 7 were given a “not qualified” rating.In contrast, President Obama has submitted roughly 185 potential judicial nominees to the ABA’s vetting panel, and 14 of them have been opposed as “not qualified.”This makes the rejection rate for Obama prospects more than 31/2 times higher than it was under the two earlier presidencies.Of the 14 who were deemed unqualified, nine are women (5 white, 2 African-American, and 2 Hispanic) and five are men (2 African-American, 2 Hispanic, and 1 white).
I am troubled by not only the fact that the Obama White House considered these people of apparently lightweight qualifications in the first place, but by the hubris the administration displays in urging a purportedly impartial vetting panel to consider the “disparate impact” of their pesky little insistence on ability.If my car won’t run, or my toilet won’t flush, I choose a mechanic or plumber based on whether they know their trade.If one of my loved ones was undergoing open heart surgery, I’d want a surgeon who knows what he or she is doing (and preferably someone who has performed such surgery many times before).I do not want a hospital deciding to “reduce the disparate impact on minorities” by giving an unqualified—but diverse—doctor a shot at the operating room.With the judicial nominees of President Obama, or any president for that matter, let’s not forget that these are lifetime appointments to the bench.“We the people” are going to be stuck with that judge for his or her lifetime, so yes, qualifications do matter.
The ABA Committee’s own guidelines make it clear that “substantial courtroom and trial experience as a lawyer or trial judge is important.”While things like public service are “valuable experiences,” “they are not a substitute for significant experience in the practice of law in either the private or public sector,” according to the Committee.Sometimes, “[d]istinguished accomplishments in the field of law or experience that is similar to in-court trial work—such as appearing before or serving on administrative agencies or arbitration boards, or teaching trial advocacy or other clinical law school courses—may compensate for a prospective nominee’s lack of substantial courtroom experience,” according to the ABA Committee’s guidelines.When evaluating such candidates, the 15 member Committee (each of whom serves a 3-year term) evaluates three main areas of professional qualifications: integrity (that prospective nominee’s character and general reputation in the legal community); professional competence (that nominee’s intellect, writing and analytical abilities, knowledge of the law, and breadth of professional experience); and judicial temperament (that nominee’s compassion, decisiveness, patience, freedom from bias, and commitment to equal justice under the law).Among other steps, Committee members spend countless hours reviewing a prospective nominee’s writings and conducting confidential interviews with judges and lawyers familiar with the candidate.The chairman of the ABA Committee, Allan J. Joseph, defends his panel’s work as both fair-minded and independent.He says, “We are not a rubber stamp.Our role is to provide the only peer review in the whole process, and we think that is valuable—particularly with a lifetime appointment under consideration.”
Mr. Joseph is right.With lifetime appointments at stake, and the potential to shape the federal bench for decades to come, the stakes are too high to get it wrong.We the people deserve better than to be on the receiving end of President Obama’s personal affirmative action plan for the judiciary.Qualifications aren’t optional.