One Vote Away: How a Single Supreme Court Seat Can Change History

One Vote Away: How a Single Supreme Court Seat Can Change History is the title of Senator Ted Cruz’ new book. He wrote it during the Covid-19 lockdown.  It promises to be a detailed look at Senator Cruz’ long relationship as a lawyer and lawmaker with the Supreme Court. Otherwise the title says it all. We hope it explains how a single Supreme Court Seat can change history.

Hand of Providence

We try to refrain from commenting on current events.  History has a way of giving us greater insight and judgement with the passing of time.

But accidents happen and history is thrust upon us.

The recent death of Justice Ginsberg has been heralded by religious people as the Hand of Providence in what may be the waning days of a Trump presidency.  His choice of Amy Coney Barrett to fill the vacant seat has been greeted with glee from the political Right and with great “weeping and gnashing of teeth” from the Left.

Skepticism requires us suspect that both will be disappointed.  Nevertheless the new Justice Barrett will be on the court for many years.  Senator Cruz’ book might give us insight into how her appointment can change history.

Fox News Interview with Senator Cruz

Our book is on order so we can’t comment on it’s content yet.

A short sample from the book discusses how the replacement of Justice Scalia became a central issue in the 2016 presidential campaign.  As Senator Cruz said on a yet unknown page of his book, “For many Americans, myself included, it was the single most important reason we voted for Donald Trump over Hillary Clinton.”

When Amy Barrett is inevitably confirmed by the Senate, will that take the Supreme Court off the table for 2020?

Here Senator Cruz discusses his book with Maria Bartiromo on Fox News, Sunday September 13, 2020.

Still Just One Vote Away

Regardless of the outcome of the 2020 election, the Supreme Court will remain potentially one vote away. While Justices are not supposed to be influenced by their biases, they clearly are to some extent;  otherwise the political calculus about how a particular Justice leans would not be relevant.

Here are the ages of the current Justices assuming Amy Barrett is confirmed.

A swing vote is defined as as a vote that is notoriously difficult to predict.  All we can hope for is that the plain words of the Constitution will prevail, preferably as the majority in Heller read those plain words.

That decision was written for the majority by the now deceased Justice Antonin Scalia.

Stare decisis is Latin for “to stand by things decided.”  In short, it is the doctrine of precedent. Some Justices believe this doctrine more firmly that others. Amy Barrett is on record affirming her belief in Stare decisis.  That should give comfort to citizens whose burning issue is Roe v. Wade.

We hope that Justice Sotomayor will feel the same about Heller.  As a lower court judge, she was known to use stare decisis,  but mostly as cover for decisions with which she already agreed.

Obviously future decisions are potentially one vote away.

Cancel Columbus Day

Constitution Day

Constitution Day in the United States has become a bit of an afterthought. The Constitution is who we are as a people. We should celebrate it, not Cristóbal Colón.

Apple does not add Constitution Day to the calendar that pops up on iPhones.  A Google search of U.S. Holidays only shows the big ten U.S. holidays – the ones Congress  designated as federal holidays.  Another, Inauguration Day is an 11th that’s celebrated once every 4 years on January 20.

Who Celebrates Constitution Day?

Constitution Day is celebrated across the country on November 26 to commemorate the adoption of the Constitution… in India.

It’s called Samvidhan Divas, also National Law Day.

Indian Constitution

India has a great constitution. They borrowed it from other constitutions: Parliamentary government from Britain; Method of election of President from Ireland; Impeachment of the President from the United States; A few nice things from South Africa, Canada, France, and Australia;  5-Year Plans from the old USSR; Suspension of Fundamental Rights during an emergency from Germany; and Article 21, which they got from Japan – “procedure established by law.”

Procedure Established by Law

We have something similar to Procedure Established by Law.  We call it “Due Process,” but the Indians purposely left our version out of their constitution. Our version,  Due Process, says that if you are accused of breaking a law, you have access to courts and maybe even a trial by jury.  The law of which you are accused of breaking might even be declared unconstitutional and the whole law thrown out. In other words, due process means you might get justice.


“No person shall be deprived of his life or personal liberty except according to procedure established by law.” (Article 21. Indian Constitution)

India cannot end police brutality. It’s legal.

United States

“… nor be deprived of life, liberty, or property, without due process of law…”  (Amendment V, Constitution of the United States)

Police brutality occasionally happens in our Republic, and due process can fix it.

Notice that we also have property rights along with life and liberty.

Lawless, Corrupt, and Sclerotic

In his 2015 book, By the People, Rebuilding Liberty without Permission, Charles Murray says that the government our Back Covwer Leaf of "By the People"founders gave us to protect our rights is no longer functioning. The Constitution has been discarded. Pretty strong language.

In the preface to Part I entitled,  Coming to Terms with where we Stand, he summarizes what has happened after the Constitution was signed on September 17, 1787

  1. “The founders’ Constitution has been discarded and cannot be restored, for reasons that are inextricably embedded in constitutional jurisprudence.
  2. Aspects of America’s legal system have become lawless, for reasons that are inextricably embedded in the use of law for social agendas.
  3. Congress and the administrative state have become systematically corrupt, for reasons that are inextricably embedded in the market for government favors.
  4. The federal government is in a state of advanced sclerosis for reasons that are inextricably embedded in the nature of advanced democracies.”

Inextricably embedded means that the solutions are beyond the reach of the electoral and legislative processes. We can’t just vote them out. They resist change because too many people live off the giant federal government.

He covers a lot of territory in his book. Too much to discuss here. One small part serves to illustrate the problem.

Due Process Denied

The regulatory government has grown so large that there is a regulation for almost everything. If you break one of those rules, an unelected federal bureaucrat (or public servant depending on your point of view) may assess a very large fine or even seek jail time.  You certainly can fight it in court because you have due process.  But wait, the lawyers say it will cost a million dollars to fight it all the way to a district court, or to the U.S Supreme Court. You don’t have that much free cash at the moment so you do what most people do. Negotiate something you can live with short of going to jail. The regulators win.

What to Do?

Charles Murray has some suggestions in his book but even he says such ideas are a long shot. Like Civil Disobedience.

It took a long time to build the regulatory state and, if it is to be repaired, it will take a long time and a populace demanding that it be done.

Constitution Day, a federal holiday with time off from work and an adequate budget, might refocus the nation’s attention to our founding document. A more robust Constitution Day will never become reality until people who are deeply concerned about the rights of the minority and the electoral college start pressing to have a day that really focuses our attention on the Constitution, not Citizenship Day.

The last time Congress fiddled around with Constitution Day in 2004, they created the “Constitution Day and Citizenship Day” from a previous Citizenship Day celebrated in May.  The Act they passed mandates that educational institutions government agencies promote the history of the American Constitution on September 17.  Of course Congress did not appropriate any money or any other incentives.  Very few people know about Constitution Day, except some dedicated people who maintain a website,

Get Rid of Columbus Day

Get rid of Columbus Day and make Constitution Day a 4 day weekend to show it is something special. It could run from the first Friday after September 13 until the following Monday – Friday, Saturday, Sunday, Monday.   Everybody off from work, spending money and traveling for 4 days.  Fifty years from now, everyone will look forward to Constitution Day and nobody will ever remember a holiday for the explorer who enslaved native people in the Caribbean.

Trivia Questions

How does the Constitution spell   “choose?”  How many times. Does spelling count?

Which words are misspelled?

Which sections of the Constitution have been changed by amendments?

…House of Representatives shall choose immediately, by ballot…

The House of Representatives shall chuse their Speaker…

6 times-  chuse

5 times -choose

9/11 Should NOT be a National Holiday

As much as we mourn the loss of people on 9/11, the date should not become a national holiday.

Twenty years after the attack on the World Trade Center in N.Y and on the Pentagon in Washington DC, vivid memories persist of the people lost and the lives ruined .  It’s natural to remember our most recent tragedies. – painful events that happen within our lifetimes.

Almost 3,000 people died that day and many more have died since then from the toxic effects of substances to which first responders and others were exposed.  Yet 9/11 did not plunge us into a World War, although that may have been a motive of the attackers.

The wars that followed 9/11 were an escalation of wars that have been going on for a long time. One side calls it jihad (meritorious struggle); the other calls it self-defense. A self-styled Mahdi—the “Expected One”— led a jihad against infidels and apostates in Sudan during the late 19th-century. Current jihadists repeat his words as they wage their religious struggle against people they consider infidels and apostates around the world.

Another “Sneak” Attack

There are few people still alive who are old enough to remember the attack on December 7, 1941.  That “sneak” attack by Japan killed  2,403 Americans and wounded 1,178 more.  Between the European and Pacific theaters of World War II, over half a million Americans died.

In 1994, over 50 years after Dec. 7, 1941, Congress designated December 7 of each year as National Pearl Harbor Remembrance Day, not a National Holiday.

In 2051 or thereabouts, a future U.S. Congress, benefiting from the hindsight of history, should consider whether Sept 11, 2001 was a pivotal date like Pearl Harbor was. Then Congress can decide if 9/11 should be a Remembrance Day.

Do We Need Another Holiday?

We already have a holiday to remember everybody who has died in all the wars we have ever fought. That day is Memorial Day.

We include the Civil War with 655,000 lost on both sides; the Spanish–American/Philippine–American Wars (about 7,000); World War I (115,000); World War II (670,846-official); Korea (92,134); Vietnam (153,303 ); Gulf War (849); Afghanistan (20,050); Iraq (32,222).  We should also go back to the Revolutionary War, War of 1812, Mexican American War, Northwest Indian War and numerous other wars against native Americans…  Well you get the idea. Sadly a lot of people have died in wars.

Memorial Day

Memorial Day was originally called Decoration Day to honor those who died in the American Civil War,  “for the purpose of strewing with flowers, or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion, and whose bodies now lie in almost every city, village and hamlet churchyard in the land.” (General Order No. 11. Issued by General John Logan in 1868.)

In a recent poll, 55% correctly describe Memorial Day as a day to honor the fallen from all the nation’s wars. For younger people, age 18-34,  the percentage drops to 40%.  Some people believe Memorial Day is a time to put flowers on the graves of relatives.  Others say it is the beginning of summer.

The Uniform Holiday Act of 1968 declared Memorial Day a federal holiday to be observed on a Monday, thus adding it to our list of 3 day holiday weekends.

  • Washington’s Birthday: third Monday in February
  • Memorial Day: last Monday in May
  • Labor Day: first Monday in September
  • Columbus Day: second Monday in October

Reason for the 9/11 Attack

As a nation we should continue the debate about the reasons for the 9/11 attack. We continue to have troops in many places around the world where we perceive threats caused by radical Islam.

Why were 19 young 20th century men so eager to die when they crashed the planes into their targets on September 11, 2001?  Why were they so eager to kill a lot of other people in the process? And wreak billions of dollars in property damage?  And make such a big statement about something based on archaic ideas that they may or may not share with 24% of the world’s population.

The National Commission on Terrorist Attacks Upon the United States

Congress chartered the 9/11 Commission “to prepare a full and complete account of the circumstances surrounding the September 11, 2001 terrorist attacks, including preparedness for and the immediate response to the attacks. The Commission was also mandated to provide recommendations designed to guard against future attacks.”

Usama bin Laden

The commission did a good job of outlining how the attack was financed, how the perpetrators were recruited,  and what their assumed motivations were. It describes how Islam came into existence and provides a history to distinguish between various factions of legitimate Islam and what the commission describes as radical beliefs espoused by Usama bin Laden and the terrorists he recruited. The personal histories of the perpetrators read like a novel.

The county has spend vast sums of money carrying out the commission’s recommendations, some would argue, to the detriment of our personal Liberties. For 20 years the war on terror has prevented new attacks similar to the 9/11 tragedy.  The commission also defined other threats:

“In the post-9/11 world, threats are defined more by the fault lines within societies than by the territorial boundaries between them. From terrorism to global disease or environmental degradation, the challenges have become transnational rather than international. That is the defining quality of world politics in the twenty-first century.” (p361)

Global Pandemic



The global pandemic caused by the novel coronavirus, SARS-CoV-2, demonstrates the difficulty of being prepared to prevent every danger. There may be a commission to determine what went wrong. Why were we not prepared?

The death toll from the pandemic will far surpass the death toll on 9/11.

In our fractured political environment, the current President is being blamed for everything. He points his finger to the World Health Organization (WHO) and China, who clearly tried to conceal person-to-person spread of the virus.

The obvious question is “Where was the elaborate intelligence network set up to prevent transnational threats?”  Maybe a commission can find the answer.

House Judiciary Hearing of Tuesday, July 28, 2020

Attorney General William Barr is a patriot and strong advocate for the rule of law. His favorable place in History is assured, while his tormentors will be soon forgotten.  July 28, 2020 was such a day of mindless torment for Mr. Barr but he appeared amused by the committee’s antics and survived unscathed.

TheHearing exposed most of the Democrats on the committee as true children of post-modernity. If you are not sure what post-modernity, or postmodernism, is, there are two good definitions, one for kids and one for graduate students.  Take your pick.

Definition of Postmodernism for Kids

Postmodernism is a way of thinking about culture, philosophy, art and many other things. The term has been used in many different ways at different times, but there are some things in common.

Postmodernism says that there is no real truth people can know. It says that knowledge is always made or invented and not discovered. Because knowledge is made by people, a person cannot know something with certainty – all ideas and facts are ‘believed’ instead of ‘known’. There may or may not be some sort of ultimate truth, but we cannot know it. People often believe they know the truth, but their opinion will change later. This is different from traditional views of ‘objectivity’, which say there is a single knowable truth independent of anyone’s observation or opinion.

Definition of Postmodernism for Graduate Students.

The late French cultural theorist,  Jean Baudrillard (July 27, 1929 – March 6, 2007), is famous for his work on the “meaning of meaning.”

Here is his definition of post-modern ideology:

“Postmodernity is said to be a culture of fragmentary sensations, eclectic nostalgia, disposable simulacra, and promiscuous superficiality, in which the traditionally valued qualities of depth, coherence, meaning, originality, and authenticity are evacuated or dissolved amid the random swirl of empty signals.”

Baudrillard was not a fan of Americans.  But his ideas have been picked up by academics and are taught in University courses whose names end in “studies.”  Many in Congress are now influenced by his ideology.

The the hearing was not a hearing.  That implies somebody was listening.

The members did not want to hear AG Barr. They wanted to puff their feathers up in front of the camera, ask Mr. Barr questions, and then refuse to let him answer. Reclaiming their time, they themselves provided the answers they wanted to hear.

It was an obvious display that most of the Democrats on the committee are deeply influenced by post-modern ideas.  When ideas attain the emotional quality demonstrated the hearing,  it is known as ideology.

Depth, Coherence, Meaning, Originality, and Authenticity

The ranting members of the committee clearly displayed their preference for an alternative reality as they preened in front of the camera, believing that their precious constituents would be watching and cheering approvingly.

Attorney General Barr on the other-hand patiently endured their abuse.  He displayed the traditionally valued qualities of coherence and meaning.  His message was simple. He takes his oath of office seriously and he is faithfully enforcing the law without regard to political or outside influence.

When asked a question under penalty of perjury and then not allowed to answer, he forcefully insisted on answering.

Entire Five Hours of the Hearing

If you are interested in skipping through the entire 5 hours of the hearing, you will see how toxic the political environment has become.

Watch Ms. Mucarssel-Powell (D-FL) show riots in Venezuela to accuse the administration of gassing “peaceful” protesters in the U.S. Her insufferable bullying includes accusing President Trump and Mr. Barr of  allowing her constituents to die.

Throughout the hearing you will see the unflappable patience of the Attorney General.  We have little doubt that history will treat Mr. Barr with admiration, while the miscellaneous temporary players on the congressional stage will fade like Shakespeare’s characterization of Life in Macbeth:

Life’s but a walking shadow, a poor player
That struts and frets his hour upon the stage
And then is heard no more: it is a tale
Told by an idiot, full of sound and fury,
Signifying nothing.

(SCENE V. Dunsinane. Within the castle.)

The Hearing

The 4th of July

Every year the 4th of July gives Americans the chance to think about our roots and hopefully show a little gratitude for the sacrifices that a lot of people made for us. Unfortunately gratitude is not a common virtue among a large segment of our ill-informed fellow citizens who do not even know who fought in the revolutionary war, the civil war, or World Wars I and II.

Instead this year we are witnessing citizens who are inflamed about racial tension and are willing to disregard our entire history of progress to satisfy their sophomoric notions of history. In their eyes, the founding fathers where evil slave owners, not worthy of our admiration or gratitude.

We can only ask them to consider the thousands of our compatriots who followed those founding fathers and became the soldiers who delivered victories that resulted in the preservation of that same Liberty we all share.

Baltimore Independent Cadets

On December 3, 1774 the Baltimore Committee of Observation and 59 Baltimore citizens formed the Baltimore Independent Cadets and elected Mordecai Gist to be their Captain.  They adopted the following bylaws, which explain their purpose.

“We, the Baltimore Independent Cadets, deeply impressed with a sense of the unhappy condition our suffering brethren of Boston–of the alarming conduct of General Gage–and the oppressive unconstitutional acts of Parliament to deprive us of liberty, and enforce slavery on his Majesty’s loyal liege subjects of America in general; for the better security of our lives, liberties, and property, under such alarming circumstances, think it highly advisable and necessary that we form ourselves into a body or company, in order to learn military discipline, and to act in defiance of our country, agreeable to the Resolves of the Continental Congress.  And first, as dutiful subjects t King George the 3rd, our Royal Sovereign, we acknowledge all due allegiance, freedom and liberty of the Constitution.  Secondly, we resolve after a company of sixty men shall have voluntarily subscribed their names to this paper, that public notice thereof shall be given, and a meeting called to elect the officers of said company, under whose command we desire to be let, and will strictly adhere to, under all the sacred ties of honor, and the love and justice due to ourselves and country; and in case of any emergency we will be ready to march to the assistance of our sister colonies, at the discretion and direction of our commanding officer so elected, and that in the space of forty-eight hours notice from said officer.  Thirdly, we agree and firmly resolve to procure at our own expense, a uniform suit of clothes, (Regal.) Scarlet, turned up with buff, and trimmed with yellow metal, or gold buttons, white stockings, and black cloth half boots; likewise, a good gun with cartouche pouch, a pair of pistols, belt and cutlass, with four pounds of powder and sixteen of lead, which shall be ready to equip ourselves with, on the shortest notice.  And if default shall be found in either of us, contrary to the true intent and meaning of this engagement, we desire, and submit ourselves to a trial by court martial, whom we hereby fully authorize and empower to determine punishments, adequate to the crimes that may be committed, but not to extend to corporal punishment.  Given under our hands, this third day of December, in the year of our Lord, one thousand seven hundred and seventy-four.”

The Baltimore Independent Cadets, were absorbed into William Smallwood’s Maryland Battalion (or Regiment) and into seven attached independent companies on January 14, 1776.  Compared to the rag-tag Colonial soldiers, the Cadets were elegant in their uniforms and rifles with bayonets. The contrast earned them the name Macaronis, similar to our word “dandy” now. It was used pejoratively referring to solders who excelled in appearance, discipline, and ultimately in performance on the battlefield.

In July, 1776, the Battalion was assigned to the main Continental Army and formally adopted into the Continental Army in August.  Later that month, the first and largest battle of the Revolution was fought on the west end of Long Island and is variously called the Battle of Long Island or the Battle of Brooklyn.

Old Stone House

image of Vechte-Cortelyou-House-Brooklyn

Vechte-Cortelyou House
John L. Pierrepont / Public domain

An Old Stone House was a central feature of the Battle of Brooklyn. The British General Cornwallis occupied the house as his headquarters. At the time of the historic battle, the British greatly outnumbered Washington’s army so he ordered their retreat.  Brigadier General William Alexander Stirling fought on for several hours not realizing that he was being outflanked by the British.

When he saw he was surrounded, Stirling ordered his men to retreat also, but they were essentially cut off. A few escaped though a swamp but many were killed or captured.

Stirling and Major Mordecai Gist took a contingent of  approximately 270 men from the Maryland Regiment and repeatedly attacked the British defending the house in order to open a breach in the British lines and enable Washington and the rest of the Army to escape. After sustaining heavy losses, Major Gist and nine soldiers escaped. Stirling was captured and later released in a prisoner exchange for a British loyalist,  Montfort Browne.

Reading an abbreviated account of the battle leaves out a lot of important facts. Why were the Marylanders left to sacrifice themselves? And why is an obscure figure like Montfort Browne worth mentioning?

Maryland 400

The Maryland First Battalion consisted of  728 soldiers in 1776.  They were among the best trained and armed. In those days, riflemen relied on bayonets for fast and close combat. Most of the Continental Army had no bayonets.  The Maryland Battalion had bayonets and had drilled in their use. During the Battle of Brooklyn the Battalion sustained heavy causalities. By the time Washington ordered the retreat, the Battalion had dwindled to around 400 soldiers. That is the number that has been reported in histories of the battle and eventually accepted as a convenient round number to romantically compare to the three hundred Spartans who battled the invading Persian Army at the Battle of Thermopylae.

Gist and Stirling led their troops into British fire, each time sustaining devastating casualties.  Stepping over their fallen comrades, they continued to press on. Washington is reported to have exclaimed, ” “My God, what brave men I must this day lose!”

Those who sacrificed themselves whether wittingly or out of desperation to escape themselves allowed Washington to escape with his army. The entire revolution could have ended at the Battle of Brooklyn.

For a closer look at where the idea of the Maryland 400 came from click HERE.

256 Maryland Soldiers

After the battle for Brooklyn, it was believed that the British or Hessian troops dug a long trench and buried the fallen Maryland soldiers. For many years residents thought the graves were beneath a concrete parking lot around 9th Street and 3rd Avenue in Brooklyn, NY. The Department of Education even installed a plaque at the location.

For over 100 years after the battle, the land where the battle was fought remained farmland.  Farmers reported digging up human bones occasionally as they tilled the land.

The Vechte-Cortelyou House was a sturdy structure designed to withstand attacks from native Americans. It changed hands several times after the war but it was razed and burned in 1897.  A later reconstruction by the city used some of the stones from the original building and now it serves as a Department of Park’s and Recreation museum and comfort station.

The location of the grave of the 256 Maryland soldiers remained controversial until 2017 when the city hired the architectural contracting firm AKRF to excavate the parking lot. Nothing was found except the remains of a pit (outhouse). No bones or other artifacts were found.

Montfort Browne

The story of Montfort Browne is instructive.  We think of ourselves as Americans. And when we think of the founding fathers and George Washington in particular, we think of the United States. But when the Revolution against England started, there were no United States; there were 13 colonies. Each colony was committed to the revolution to varying degrees and the citizens of the colonies saw themselves as citizens of each colony, not of a larger nation. Almost everybody was a loyal subject of King George III until they took the terrifying step to declare their allegiance to the  traitors, whom we call now call patriots.

What we now think of as the American Revolution was in fact a civil war. And the greater war, after France and Spain joined to help “our side,” was in fact a global war.  It became a rematch of the Seven Years’ War (1756–63) when France and Spain suffered defeat and loss of territory at the hands of the British. Our revered hero, General George Washington was a militia colonel who was sent to fight the French in the Ohio valley. He was defeated by the French and forced to sign a declaration in French that that was used as propaganda by the French to exacerbate hostilities between France and Britain, eventually leading to the Seven Years’ War.

King George did not view his war in the colonies as a war against a foreign enemy; it was an uprising among his loyal subjects. And indeed most of the colonists remained loyal in the beginning. Estimates are as high a 65% were loyal, 35% were sympathetic to the revolution, but only 10% were willing to die for their beliefs. Benjamin Franklin’s own son remained loyal to the British Crown and in 1782, he went into exile in Britain.

Montfort Brown was also a loyal subject of the crown, a British Army officer, Tory, land speculator in west Florida, and governor of the Bahamas from 1774 to 1780.  In March of 1776 he had the misfortune of being take prisoner  along with 12 other high ranking Bahamian officials and taken to Maryland by the American fleet. In those days of gentlemanly warfare among generals and high ranking officials, Browne and perhaps some of his cohorts were a perfect swap for the recently captured American general, Brigadier General William Alexander Stirling. Upon his release, Stirling was promoted to Major General.

By returning Stirling to the battlefield, the revolution gained back a general officer ranked variously as number 3 or number 4 after Washington himself.

Thomas Paine

When Thomas Paine published his ideas that culminated in the multiple versions of “Common Sense,”  most colonists identified as British. Even those whose ancestors came from other countries like the Dutch who settled New York were fluent in English.   The Foundation for Economic Education estimates that approximately 80% of men and 50% of women in New England were literate by 1776.”  The high literacy rate may have directly contributed to the revolution considering the success of “Common Sense.”

Published anonymously on January 10, 1776, it is amazing that the ideas in Common Sense were ratified in the language of the Declaration of Independence just six month later on July 4, 1776. In this excerpt, Paine makes the case that the Colonists are European Protestants and the New World is the Cradle of Liberty.

“But Britain is the parent country, say some. Then the more shame upon her conduct. Even brutes do not devour their young, nor savages make war upon their families; wherefore the assertion, if true, turns to her reproach; but it happens not to be true, or only partly so, and the phrase parent or mother country hath been jesuitically adopted by the king and his parasites, with a low papistical design of gaining an unfair bias on the credulous weakness of our minds. Europe, and not England, is the parent country of America. This new world hath been the asylum for the persecuted lovers of civil and religious liberty from every part of Europe. Hither have they fled, not from the tender embraces of the mother, but from the cruelty of the monster; and it is so far true of England, that the same tyranny which drove the first emigrants from home, pursues their descendants still. ”

Tyrannical American Government?

There is a large segment of American society, particularly on the political Left, who enlist Paine’s rhetoric to bolster their own grievances.

“…our calamity is heightened by reflecting that we furnish the means by which we suffer.”– Thomas Paine, Common Sense 1776

The Big Easy Magazine website proclaims itself as Unapologetically Progressive. Uniquely New Orleans. The writer boldly proclaims:

The current state of civil unrest must be viewed in the context of a tyrannical American government. When a group of people are being oppressed, American history has shown, that violence, riots, and revolution are predictable outcomes.
Asad El Malik,  June 1st 2020

We cannot argue with the publication’s core values: Kindness Compassion Equality Love Justice Inclusiveness, however contradictory they may seem to violence, riots, and revolution. We do however strongly disagree with the premise of a tyrannical American Government.

Many of the grievances in the Big Easy story deal with local conditions, police departments under local control, not a tyrannical American government.  Such hyperbole is uninformed by history, fact, and reason. The Constitution guarantees citizens’ right to petition the government for redress of grievances. Of course the easiest way to change things is to vote for qualified leaders in the first place, instead of the perpetually corrupt local governments that “furnish the means by which (they) suffer.”

Further Reading

The Black Lives Matter movement identified real injustice, both in current events and in the recent past. It appears that some of the violence accompanying protests was motivated by outside forces that have alternative agendas. Sadly this detracts from the message that seeks to correct racial injustice. It also takes away from the tremendous progress that has been made particularly since the Civil Rights Act of 1964.

Rayford W. Logan argues that 1901 was the low point of black Americans’ status in society. His book, “The Negro in American Life and Thought: The Nadir, 1877–1901,” was published in 1954 and is now a collectors item. It was republished and expanded as “The Betrayal Of The Negro: From Rutherford B. Hayes To Woodrow Wilson,” in 1997.

A worse past is no justification for dismissing current problems. However, learning about the past helps us understand that real progress has been made and many brave people accomplished it by quietly writing books or being active politically. Change can be made without violence, riots, and revolution.

Constitutional Authority Running Amok

The coronavirus pandemic has put the Constitution on full display.  The Federal government has power that is supposed to be relatively limited compared to the powers reserved to the states and to the people. The power to quarantine is clearly with the states, and with the people themselves should they chose to voluntarily isolate themselves.

The constitutions of the various states define what emergency powers governors and mayors may exercise.  Whatever is not clearly defined in those constitutions and in legislation is reserved to the people to behave responsibly during chaotic emergencies. While the people have been acting responsibly for the most part, many local officials appear to have abused their power. Some have run amok.

Presidential Authority

President Trump grandly announced that his authority relative to the coronavirus pandemic is “total.”  His actions, however, show that he knows the real power lies with the states and with the people.

Article II of the Constitution gives the president “the executive power,” but does say what it is. Subsequently Congress and the Courts have pretty well defined what the president can do.  Hamilton in the Federalist papers made the argument for an “energetic” chief executive and regarded the legislature as the body that should deliberate and display wisdom.

“Those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single Executive and a numerous legislature. They have with great propriety, considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand, while they have, with equal propriety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests.”

During the pandemic, the President has clearly been energetic.  Daily press briefings highlight ever changing guidance as experts learn more about the virus and its epidemiology. He correctly defined the virus by its origin in China. Members of the opposing party in Congress protest that it is somehow racist to say the virus originated in China. If nothing else, members of legislatures regularly display their banality instead of the wisdom that Hamilton hoped for. But at least in such emergencies, we do not have to rely on the wisdom of the U.S. Congress – just their power of the purse to vote trillions of dollars for good or ill.

Governors’ Authority

Michigan’s Act 301 of 1945  gives the governor emergency powers upon  “reasonable apprehension of immediate danger.”  Most other states except New York have enabling legislation that gives governors extraordinary power if a threat is immediate or imminent.  New York goes far beyond immediate or imminent.

Normally emergency measures must be proportional to the threat and limited in their duration. Within those general guidelines come the inevitable disagreements over “how much for how long.”

In New York, governor Andrew Cuomo signed 11 executive orders, suspending dozens of laws. Only the state legislature can limit his power, but his party controls the legislature so there is little opposition.  In fact the legislature gave the N.Y. governor dictatorial authority during an emergency by changing the language of previous emergency powers from “imminent” threat to “impending or urgent threat.” Is climate change an imminent threat?

Read the bill HERE        (opens in PDF)

Now the New York governor may do as he pleases. Exercising the wisdom that Hamilton presumed would prevail, the New York legislature allowed for repetitive 30 day limits on the governors’ executive orders, with additional 30 day extensions up to an absolute limit at which sections one and two of the enabling legislation would expire and be deemed repealed  on April 30, 2021.

At least the legislature did not envision a dictator for life.

Assemblymen Richard Gottfried (D-Manhattan) when asked about the impact of the new legislation replied:

It gives “the governor very extensive and almost unlimited affirmative legislative power to not only waive existing laws and provisions of existing laws, which he now has authority to do, but it also empowers him to essentially make new legislation by issuing ‘directives’ to any New Yorkers.” (Quoted from Observer)

New York and Michigan’s governors are not alone in either being granted, or assuming, near dictatorial emergency powers. Many other governors like Pennsylvania’s Tom Wolf,(D), and  Vermont’s Phil Scott (R) have been accused of making arbitrary decisions about what is essential or non essential to decide who must shut down their businesses and risk financial ruin.

City and County Authority

“My message to the Jewish community, and all communities, is this simple: the time for warnings has passed. I have instructed the NYPD to proceed immediately to summons or even arrest those who gather in large groups. This is about stopping this disease and saving lives. Period.” (Bill de Blasio)

Local government is that closest to the people and is generally most responsive to the needs and desires of the people. Yet local governments are the ones that can immediately wield the awesome ” police power of the state.”  The president and governors are not the ones who put people in jail during an emergency that suspends normal legal protections. It’s the local authorities who are in a position to back up their presumed authority with force at their disposal.  Interestingly local police occasionally refuse to back up their mayors or county commissioners when they consider the order to be unlawful.

A local Democratic Dallas County Judge, Clay Jenkins, ordered salon owner Shelley Luther to immediately close her North Dallas salon . In Texas, elected county executive officers are called judges.  Jenkins was following Republican Governor Greg Abbott’s executive order (Opens in PDF).

She refused and became the face of a resistance movement that quickly escalated into a public fight between Democrat led counties and cities and libertarian leaning Republicans. A Democrat judge (real judge), District Judge Eric Moyé, acting on a request from the Democrat led City of Dallas ordered Ms. Luther to shutter her business, and when she refused he sentenced her to a week in jail and $7,000 fine. Local police indeed put her in jail.  She was soon freed after a massive outcry and intervention by Governor Abbott who saw his order being executed too harshly.

In the meantime, Montgomery County Judge Mark J. Keough, a Republican, said Governor Abbott’s order was too vague and he would not enforce it.

It’s at the local level that the worse abuses of peoples’ civil liberties happen during ordinary times. Police brutality is an example. During extraordinarily times when local officials are ill prepared to deal with the nature of an emergency, stubbornly authoritarian local leaders may in good faith feel that they know best and force citizens to obey their edicts no matter how draconian or ultimately unconstitutional.

In the current coronavirus pandemic, the courts will be sorting out claims of abuse and unconstitutionality for a long time to come.

Liberty versus Safety

“I didn’t say it.”

Local authorities grapple with the extent of their authority and often fail to restrain tyrannical impulses engendered by what they believe is their more enlightened understanding of a dangerous pandemic.  Opponents of heavy handed government look for learned proclamations of the founding fathers to justify their opposition. Certainly Benjamin Franklin had something to say about shutting everything down in the face of a pandemic.

Unfortunately we cannot find it. He had something else besides personal or civil Liberty in mind when he said, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”  The “Essential liberty” to which he was referring was right of the Pennsylvania legislature to enact taxes to purchase a “little temporary safety” against attacks on the frontier during the French and Indian War.  No, we need to search deeper if there is a link between Liberty and Safety.

A philosophical justification for choosing Security over Liberty over  cannot be found because they are not in conflict. We can have both. There will forever be tension between the two, and so the dictum, “eternal vigilance is the price of liberty,” seems like good advice. (quoted from The Life of Major General James Jackson, by Thomas U.P. Charlton, 1809)  Combined with Leonard Henry Courtney’s “The price of peace is eternal vigilance,”  it appears some thoughtful people have equated both liberty and peace/security with paying attention.

Dobbin, Hamilton Henry. [Policeman Adjusting Flu Mask on a Citizen]. N.p., 1918. Print.

There is a continuum between questions of Liberty and Security with both being highly subjective.  In normal times we agree to laws that impose a common set of public restrictions, such as speed limits. Few disagree with the concept of speed limits but many would disagree if the speed limit is too slow or too fast. When it comes to questions of the Patriot Act or how TSA handles airport security, the questions become more complex. Recently abuses of the Patriot Act and the FISA courts that the Act created have come to light.  Fortunately there are many both within government and without that are paying attention.

But the Constitution itself never foresaw the myriad of epidemics that have plagued the world and our own country. The closest thing we have endured as a nation to the current pandemic was the pandemic of  1918 caused by the H1N1 virus. It killed 50 million people worldwide because it struck a world of people with no immunity, no antibiotics to treat secondary infections, no immunizations, and spotty compliance with known strategies: isolation, quarantine, personal hygiene, disinfectants, and limitations of public gatherings.  Local communities deputized men to form an armed cordon around towns to keep people out.  Such “shotgun quarantines”  were perfectly legal.

May a state close its borders from other states and stop all air travel into the state?  In a word, yes.

Chief Justice Earl Warren in the Supreme Court’s 1965 decision in Zemel v. Rusk wrote:

“But that freedom does not mean that areas ravaged by flood, fire or pestilence cannot be quarantined when it can be demonstrated that unlimited travel to the area would directly and materially interfere with the safety and welfare of the area or the Nation as a whole.”  (citation)

After draconian emergency measures have passed, the people will decide what was appropriate and what was not. Then they can pass new laws if necessary.  They may also show their displeasure for the officials’ actions during an emergency and throw them out of office at the next election. Abuses suffered during the emergency can be adjudicated. If citizens remain well informed and paricipate in representative democracy there is a reasonable expectation that an acceptable balance between freedoms and security can prevail.

Obituary of Thomas Jefferson

Occasionally we run across interesting articles that we would like to pass on.  On further refection we realize that what interests one person may not excite another.  But this time we will make an exception because we are very interested in Jefferson, and so should you.

Barton Family Funeral Service is a family run funeral service in Kirkland Washington, which happens to be almost ground zero for the coronavirus pandemic in the United States.  The press reported that some of the early deaths from coronavirus occurred at the Life Care Center in Kirkland. So out of curiosity, we started to search on coronavirus in Kirkland WA and we ran into the Barton web site. Assuming that obituaries would be the place to look, we encountered an interesting chain of pages that ended in the Obituary of Thomas Jefferson, almost 200 years late. (Date of death: July 4, 1826)

Chain of Pages

The chain of pages that led us to the obituary involved showing people how to upload pictures to put in an online obituary.

The second of the above three links had links to information about Jefferson, and since he is one of our favorite founding fathers, we followed the link to the last page, which was the obituary.  We called Barton Family Funeral Service.  They were a bit surprised we found the page. It has been on their site for a long time and no one has commented on it before.

Permission Granted

We asked permission to post the article in its entirety and they were more than please to let us do so, asking only that we include their credits and copyright. So here is the Obituary of Thomas Jefferson 200 years late. It has the advantage of historical perspective to make an important point.  As stated in their article about the American Revolutionary War against England, “Their revolution was to be free from England. Ending slavery would have required another revolution and would have been the death of the union, as it almost was in 1861-1965.”

Obituary of Thomas Jefferson 200 Years Late.

Thomas Jefferson

April 13, 1743, (Shadwell, Colony of Virginia, British America)-July 4, 1826 (Charlottesville, Virginia, U.S.)

Thomas Jefferson is counted among the Founding Fathers . He was the principal author of the Declaration of Independence and later served as the third president of the United States from 1801 to 1809. Previously, he served as vice-president under John Adams from 1797 to 1801.

Jefferson was a prolific writer. John Adams, who also made major contributions to the Declaration of Independence, asked Jefferson to edit the document because  he felt Jefferson had “A peculiar felicity for expression.”

Jefferson is regarded as one of the most intelligent of U.S. presidents. President Kennedy is reported to have said to a gathering of scientists in the White House, that “I’d like to welcome you all to the greatest gathering of minds to assemble here since Thomas Jefferson dined alone.”

He was a genius by any standard but was just one among other geniuses of the day including, Washington, Adams, and Benjamin Franklin.

De mortuis nil nisi bene dicendum

(Speak not ill of the dead)

It has recently become fashionable among a self-righteous and arguably self-centered portion of the population to condemn many of the Founders of the Republic because they did not write or speak about the evils of slavery. Indeed Jefferson owned slaves. He also lived beyond his means, made bad investments, and may have had some personal relationships that used to be illegal in Utah.

Five of the  Founders, Washington, Adams, Franklin, Hamilton, and  Madison are on record for opposing slavery. They condemned it eloquently. Some are on record for wondering why their colleague Jefferson did not use his eloquence to denounce slavery.

Their legacy as founders, and indeed their very lives, depended on uniting a nation and winning the Revolution.

Their revolution was to be free from England. Ending slavery would have required another revolution and would have been the death of the union, as it almost was in 1861-1965.

Wise people know that they cannot always achieve their objectives as quickly as they may want. The ability to delay gratification has been show to be a characteristic of successful individuals.

Jefferson, like all of us when we die, should be remembered for the incalculable good things that he accomplished. He may have wanted to do more. Perhaps he knew he could not live long enough to see it all happen.

Thomas Jefferson’s Grave Stone

Jefferson instructed that his grave stone be made of “coarse stone … that no one might be tempted hereafter to destroy it for the value of the materials.”

Nevertheless people chipped off pieces for souvenirs rendering the monument in such poor repair that it was replaced by a new one in the family cemetery at Monticello and the old one was donated by the family to University of Missouri on July 4, 1885.

Content on this page is  from
© 2008-2020, Barton Family Funeral Service, LLC. All rights reserve.

Constitutional Authority

“Authority is Total”

The President caused a major freak-out when he declared that his authority is “total.” Listen carefully to what he so inartfully said. Then realize it is not what President says that is as important as what he does.

Righteous Indignation

As you see in the clip from the Guardian’s coverage of the President’s press briefing, the response from the ever vigilant guardians of truth and justice was swift.

What is Truth?

Keep in mind that the philosophical argument about “what is truth” has been going on since the dawn of human history.

Undoubtedly the intrepid reporter who made that bold declaration to the president has her own idea of what truth is. It is her truth, the truth that she subjectively feels. Her intuitive truth.  Perhaps it is informed by her understanding of the Constitution. Perhaps she thinks the Constitution embodies truths that the document itself declares to be “self-evident.” Is it true that all men are created equal?

Some people say the Bible is true. Some say it is not, but those who swear it is true seem to be more willing to die for their beliefs than those who say it is not true. The ones who say the bible is not true are less likely to publicly say that Muhammad was not a prophet contrary to the beliefs of over a billion people, some of whom have also demonstrated a fondness of dying for their beliefs.

Is the truth even worth dying for if there is such ambiguity about what is really true?  There seems to be an inordinate amount of emotion surrounding people’s notion of truth.

Is the President a Liar?

The President is widely decried as a liar because he says things that contradict what others regard as immutable truth. He regularly shows scant regard for the accuracy of numbers or dates, preferring instead to  paint a narrative. Like Longfellow’s highly fictional Paul Revere’s Ride, but without the eloquent poetry, Trump tells stories to get a point across. Those who listen to him and howl, “that’s not true”are not missing the point as much as they just viscerally disagree with the point he is trying to make.  And when he voices his aspirations in the guise of promises and then is unable to execute on those promises, like any accomplished adolescent, he blames the opposing party or fake news for holding him back.

In the final analysis he is right. Opposition to Trump has been breathtaking from even before he took office. It is often difficult to tell who the adults are and who are the petulant children.

The Reality

Back on the subject of Constitutional Authority, there are academic arguments from constitutional scholars and jurists and then there is reality.

We previously commented on the constitutionality of quarantines. We demonstrated that the powers not delegated to the federal government are reserved to the states and to the people.   We also mentioned the troublesome Commerce Clause.

President Trump said that the president has “absolute” power. Not he, but the president.

That statement made a lot of people’s heads explode. Dictators have absolute power. Presidents are supposed to bend to the will of the people, but not necessarily to all the people.  Just their kind of people. When Trump talks to his people, the OTHER people jeer at and mock them all.

Perhaps on a certain level they know he is right. If he were their President, they would cheer him on for taking decisive action and spending trillions of dollars of other people’s money. They intuitively know where the true (oops, there is that word again) power is; its the power of the purse.  The Federal government invents money, Congress votes on where it should go, and the President spends it.

This has sometimes been called the golden rule. You know, he who has the gold makes the rules.

Ongoing Saga of Coronavirus Policies

Michigan’s governor, Gretchen Whitmer, promulgated the nation’s most draconian lockdown, prompting an immediate backlash. Armed citizens marched in the streets and cars jammed the streets of Lansing.

In a letter signed by Leelanau County Sheriff Mike Borkovich, Benzie County Sheriff Ted Schendel, Mainstee County Sheriff Ken Falk, and Mason County Sheriff Kim Cole, the sheriffs wrote, “Each of us took an oath to uphold and defend the Michigan Constitution, as well as the U.S. Constitution, and to ensure that your God given rights are not violated. We believe we are the last line of defense in protecting your civil liberties.”

Yet the predictably Leftist press labeled the demonstrations by ordinary citizens as “Right Wing.”  The street-fighting far right groups have failed to show themselves in public, but that did not stop the Guardian’s creative writing team from inventing an interesting headline:

Guardian Video

Note the obvious lack of street-fighting far right groups.  The Constitution of Michigan of 1963 Article 1, Section 6 reads, “Every person has a right to keep and bear arms for the defense of himself and the state.”

Most states, including Michigan, have enacted laws that allow local authorities to take emergency actions, including enforcing quarantines and isolation. Michigan’s law (Act 302 of 1945)  that gives the governor broad authority to “to proclaim a state of emergency, and to prescribe the powers and duties of the governor with respect thereto; and to prescribe penalties.”

Notably Michigan’s law  “Subsection (1) does not authorize the seizure, taking, or confiscation of lawfully possessed firearms, ammunition, or other weapons.”

Relationship of the States to Donald Trump

During ordinary times, the Democrat governors of various states join with their partisan supporters to trash Trump and work tirelessly for his ultimate defeat. But during this time of emergency when the President declares the power of the President power to be total, and the Vice-President affirms that the power of the presidency is plenary, governors with their hands out for Federal dollars are far more deferential.

Some are more deferential than others.  The Republican governors always command respect from the President, but now New York Gov. Andrew Cuomo  and California Gov. Gavin Newsom, regularly receive his  high praise for their performance in managing the pandemic emergency.

Governor Whitmer on the other hand is the object of Trump’s disdain, complaining that “all she does is sit there and blame the federal government.”  Gov. Jay Inslee of Washington is also critical of the President prompting him to admonish the Vice-President, “not to be complimentary of that governor because that governor is a snake”

In the world of big egos and boundless ambition, state governors, in whose hands reside the execution of emergency measures,  go begging for Federal dollars, the true fountain of total authority.

Quarantine is Constitutional

Many people have been complaining that shutting down businesses and quarantining people are unconstitutional.

Doesn’t the Constitution guarantee people freedom of assembly?  Limiting how many people can be in a bar or at a wedding ceremony smacks of heavy handed government denying us of our rights, doesn’t it?

No, actually the policies that local and state governments are taking during the coronavirus pandemic are in line with powers that are reserved to the States and to the People by the Constitution. You are free to limit who goes into your home; city leaders can take emergency measures to limit who goes into the city or who goes out in public places; the states have similar powers.

Actions by state and local authorities in emergencies are broad and easily enforced by local police power. There is no immediate Federal authority that will gallop in to preserve what some consider their precious first amendment rights. Or their second amendment rights for that matter. Sure, these amendments are fully incorporated to the states. If somebody thinks the mayor or governor is being too tough on them, they have recourse to the courts.

Spreading sovereign power across levels of government to cities and states is what distinguishes our constitutional republic from countries that rule from the top down. Doing so is the ultimate protection of our individual liberties. At times it may appear cumbersome but any perceived inefficiencies help us avoid the efficiencies of a dictatorship.

States’ Rights Issue

It’s interesting to watch the President and his advisors try to implement a national policy to contain the coronavirus pandemic. Advocates of unlimited federal power complain that Trump should force the states to follow a national plan. They say he should have acted sooner. To them, deferring to the governors is evading his responsibility.

To his credit, the President has stated that it’s not the federal government’s responsibility to do everything, especially what the states have the authority to do for themselves.  He is praising governors for doing their jobs.

Complaints are a continuation of the great Left-Right divide that is plaguing our body politic. Unfortunately this puts the Constitution in jeopardy as people call for nationalization of key segments of the economy.  Single payer national healthcare and other socialist schemes of the Left ignore the Constitutional principles that have allowed our economy to be strong.  As attractive as some of these proposals are to a large number of Americans, they clearly exceed the power of the federal government granted to it by the Constitution.

Tenth Amendment

The Tenth Amendment was included in the Bill of Rights to define the balance of power between  federal and state governments It says that the federal government has only powers specifically granted by the Constitution. These powers include the power to declare war, to collect taxes, to regulate foreign and to some degree interstate trade, among other enumerated powers.

Commerce Clause

The Constitution includes sections that seem to favor strong states’ rights, while others like the Commerce Clause have been used to claw back authority to the Federal Government. It grants Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

Over time it has allowed the federal government to grow into a massive enterprise that creates money and dominates the world economy. It bribes the states with grants of money. Local and state entities are lulled into believing that they must follow every dictate of the Federal government if they want the money.

The Texas Example

The constitutions of the various states often mirror the U.S. Constitution by incorporating the enumerated rights of the people and the states. Here we will discuss Texas as an example. Check the constitution and laws in your own state to see if your governor and local officials are acting constitutionally.

During  hurricane Katrina that hit New Orleans in 2005, a local authority tried to disarm the people. New Orleans police superintendent Edwin Compass called for blanket confiscation all firearms:  “Only law enforcement are allowed to have weapons,”  It was of course unconstitutional on both the state and federal level but there is little time to argue or go to court during an emergency. Actual instances of gun confiscation were fortunately limited and mostly carried out by inexperienced or out-of-state voluntary personnel.

That did not happen in Texas.  After Katrina, then Governor Rick Perry pushed for a bill,  S.B. 112, that was intended to protect the right to bear arms during a catastrophe. While the idea was noble, the bill unfortunately died in committee, not an uncommon fate in a state where “if it ain’t broke(n), don’t fix it” prevails.

Over the years Texas has enacted many laws to protect the people and their agricultural crops and livestock, including numerous laws and regulations that include emergency measures such as quarantine.

What about the coronavirus emergency?  Can the state and cities enforce quarantines or isolation?  What is the difference between quarantine and isolation?

Texas Home Rule Amendment to State Constitution

In 1912  Texas voters adopted the Home Rule Amendment to the state constitution and the legislature followed in the regular session in 1913 with the necessary enabling act.

A home-rule municipality may adopt rules to protect the health of persons in the municipality, including quarantine rules to protect the residents against communicable disease.  The following are a few of the current enabling statutes.

Texas Health and Safety Code §§ 122.005, 122.006


(a) The governing body of a Type A general-law municipality may take any action necessary or expedient to promote health or suppress disease, including actions to:(1) prevent the introduction of a communicable disease into the municipality, including stopping, detaining, and examining a person coming from a place that is infected or believed to be infected with a communicable disease; (2) establish, maintain, and regulate hospitals in the municipality or in any area within five miles of the municipal limits; or in any area within five miles of the municipal limits; or  (3) abate any nuisance that is or may become injurious to the public health.

(b) The governing body of a Type A general-law municipality may adopt rules: (1) necessary or expedient to promote health or suppress disease; or (2) to prevent the introduction of a communicable disease into the municipality, including quarantine rules, and may enforce those rules in the municipality and in any area within 10 miles of the municipality.

(c) The governing body of a Type A general-law municipality may fine a person who fails or refuses to observe the orders and rules of the health authority.

Texas Health and Safety Code § 81.085 (h)

Penalties. A person commits an offense if the person knowingly fails or refuses to obey a rule, order or instruction of the department or an order or instruction of a health authority issued under a department rule and published during an area quarantine under this section. An offense under this subsection is a felony of the third degree. (Underline Ours)

Of course it is up to the local authorities to decide if they will charge and prosecute offenses, and it is up to a court to decide innocence or guilt.  A felony, even a third degree felony is a serious matter.

Texas Health and Safety Code § 81.083 (individual); § 81.084 (property); § 81.085 ( Area Quarantine; Criminal Penalty)

Texas Response during Spanish Flu

Texas had thought through the pandemic thing in advance of the worldwide flu pandemic of 1918 by enacting Home Rule for cities, although the above statutes are the product of on-going revision and rendering into plain English since the 1960’s.

Today Texas has a population of almost 30 million people. The governor has responded logically and firmly during the coronavirus pandemic. In 1918, then Governor William P. Hobby was dealing with many problems including WW I, the flu epidemic, raids on the border with Mexico, just to name a few. During WW I, one-third of deaths in the US military was due to the Spanish flu, not being killed in battle.

When the Home Rule amendment was passed in 1912, the total population spread across a huge area stood at about four million. In 1910, San Antonio and Dallas were near 100,000 in population; Houston and Fort Worth were well over 50,000; and only 40 other cities in the state had more than 5,000 people. Laws regarding quarantine where highly focused on preventing diseases affecting agricultural produces like cotton but there were also strong provisions given to state health authorities to prevent the spread of disease within the human population.

There was no question that the state had authority to shut things down.

Art. 4419. [4528] (1913)
General duties and powers.-The State Board of Health shall have general supervision and control of all matters pertaining to the health of citizens of this State, as provided herein. It shall make a study of the causes and prevention of infection of contagious diseases affecting the lives of citizens within this State and except as otherwise provided in this chapter shall have direction and control of all matters of quarantine regulations and enforcement and shall have full power and authority to prevent the entrance of such diseases from points without the State, and shall have direction and control over sanitary and quarantine measures for dealing with all diseases within the State and to suppress same and prevent their spread. The president of the board shall have charge of and superintend the administration of all matters pertaining to State quarantine. [Id. Acts 1913, p. 147.]Art. 4420. [4536]

Epidemics are Part of Human History

Understanding the decentralized nature of our Republic and how emergencies can be managed locally are necessary to understand how various communities can react differently, sometimes to their advantage, but also to their detriment.  A lot depends on local leadership at the time.  Over the years local communities and states have managed many different diseases, most of which are forgotten except to students of history:

  • 1633-1634: Smallpox from European settlers – Native Americans were devastated.  In 1796 Edward Jenner developed a crude vaccine from cow pox . The Latin word for cow is vacca, and cowpox is vaccinia.  Jenner called his procedure vaccination. Now only old people have the smooth little scar on their arms from the immunization that was subsequently refined from vaccinia.
  • 1793: Yellow fever from the Caribbean.
  • 1832-1866: Cholera – in successive waves between 1832 and 1866.
  • 1858: Scarlet fever also came in waves until penicillin was developed.
  • 1906-1907: Typhoid Fever – like coronavirus there were healthy carriers.
  • 1918: “Spanish flu”- The 1918 Pandemic (H1N1 virus) during WW I is a lesson on how not to treat a pandemic.
  • 1921-1925: Diphtheria epidemic. Now mothers only know the name because children get their DPT shot.
  • 1916-1955: Polio – every summer for many years until Jonas Salk and Albert Sabin became national heroes.
  • 1981-1991: another measles outbreak prompting doctors to recommend a second immunization.
  • 2010, 2014: Pertussis again, whooping cough -time to take immunization seriously. Part of the DPT shot.
  • 1980s to present: HIV/AIDS. Good drugs are available for treatment but there is no real cure.
  • Every year: seasonal flu – sometimes severe. 2009: flu pandemic in the United States was a novel strain of the Influenza A/H1N1 virus.


An excellent historical review by Sean McConnell published in the Galveston County Daily News shows similarities between the largely voluntary coronavirus shutdown and measures that were taken in 1918 in Galveston Texas to slow down the spread of flu. Today’s effort is vastly more effective. We are not sending infected soldier off to war on transport ships.  We have doctors who know more than doctors knew in 1918.  There are hospitals with respirators.  Antibiotics, and a host of other drugs help manage concurrent morbidities like bacterial infections.


Our Constitutional form of government, a Representative Federal Republic, has left the power to deal with such problems with the people, municipalities, and states.  It is a mistake to expect the Federal government to do any more than assist with whatever limited Constitutional authority it has.

The fiscal stimulus is probably appropriate. One can forever argue about taxes and debt, single payer healthcare, and the myriad of demands made by people looking to the Federal Government for salvation. Salvation is in the hands of the people, as is their ruin if they if they are too lazy or stupid to accept personal responsibility for their existence on the planet.

The Federal Government has legitimate powers of quarantine within its limited mandate. It can quarantine immigrants and goods entering the country.  It may quarantine soldiers in military service. Section 361 of the Public Health Service Act (42 U.S. Code § 264) allows the executive branch to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states. The President can stop airplanes flying in from China and his opponents are free to say he is racist for doing so and for calling the SARS-CoV-2 virus the “Chinese Virus.”

MLK Holiday- A Day Still Worth Remembering

Monday, January 20, 2020

MLK was actually born on January 15, 1929, although this year we celebrated his birthday on the 20th. If he had not been assassinated on April 4, 1968, he would be 91 years old this year and could have looked forward to another 3.78 years of life according to actuarial tables for white American males.

Instead of 91 years of life, James Earl Ray (March 10, 1928 – April 23, 1998) cut him down at age 39.  His untimely death at age 39 did not make a positive contribution to the actuarial tables for black American males.

As with every day that we designate as a holiday, it may be of benefit to the human race to periodically ask ourselves if a day, person, or event is still worth commemorating.

The annual Panathenaia, the ancient Greek commemoration of Athena’s birthday is no longer celebrated, at least not in Texas.

National Holiday

On Nov. 3, 1983, President Ronald Reagan signed a bill to make the third Monday of every January a federal holiday commemorating Martin Luther King, Jr . It was to begin in 1986, although it was not observed in all states until the year 2000. Some states have combined it with existing state holidays while others have made the holiday a celebration of human rights more broadly.

Idaho’s Idaho Human Rights Day is a example of expanding the scope of the holiday.

Other examples of the combined holiday are:

Alabama: “Robert E. Lee/Martin Luther King Birthday”
Arizona: “Martin Luther King Jr./Civil Rights Day”
Arkansas: “Dr. Martin Luther King, Jr.’s Birthday and Robert E. Lee’s Birthday” from 1985 to 2017, then from 2017 to the present, the name of the state holiday in January is “Dr. Martin Luther King, Jr.’s Birthday,” and Lee’s is in October.
Idaho as noted above: “Martin Luther King Jr.–Idaho Human Rights Day”
Mississippi: “Martin Luther King’s and Robert E. Lee’s Birthdays”
New Hampshire: “Martin Luther King Jr. Civil Rights Day”
Virginia:  Lee-Jackson-King Day until 2000; then Lee-Jackson Day was moved to the Friday before Martin Luther King Jr. Day.
Wyoming:  “Martin Luther King Jr./Wyoming Equality Day”

The fact that a few of these states have combined the holiday with that of  previous heroes suggests that their legislators may not have reached a consensus about what an MLK Holiday actually means.

Confederate Heroes Day

Few Texans know that the 19th day of January is, “Confederate Heroes Day,” in honor of Jefferson Davis, Robert E. Lee, and other Confederate heroes.  This year it falls on Sunday, the day before the MLK holiday.  Our schools no longer teach us about Confederate Heroes.

Confederate Heroes Day could easily be merged with Athena’s birthday and celebrated in July on the 23-30 of Hekatombaion (July), except that the exact date may be confusing because Julius Caesar messed with the ancient calendar. And Athena was not real!

Confederate Heroes Day could also be mercifully relegated to the graveyard of history, where History takes a less impassioned look at people and events. Are the passions of the current “woke” generation by themselves enough to justify jettisoning the memories of long revered heroes?

Rather that an abrupt end to a holiday that some people may secretly enjoy celebrating,  Heroes Day and other holidays can simply be merged like Saturnalia and Christmas.  They could then be promoted as an additional important shopping day.

A more realistic end to the holiday could happen in the legislature, as Texas did to eliminate anachronisms like Article 1, Section 4, the Texas Constitution.


Revolution is occasionally necessary, as are divorce, bankruptcy, and other painfully abrupt changes in human experience. None of our holidays, memorial statues, or buildings named after Everett McKinley Dirksen needs to be abruptly dismantled in a Revolutionary fashion. Time and Evolution will make informed decisions about what to remember.

Evolution is no less violent than revolution. Both involve death. But evolution plays out over longer periods of time and is devoid of human emotion, sentimentality, and immature righteous indignation.

Let evolution deal with statues of Andrew Jackson on horseback.  Let the study of history inform us about the successes and mistakes of our progenitors. Combine the noble instincts of mediocre dead people with the learned writings of our greatest scholars and make holidays to remind us that there were a lot of people who lived who were smarter than we are.

The founding fathers were among the smart people, as were Thomas Payne and John Locke. July 4th is an excellent day to remember them collectively.  Presidents Day is a good day to remember Washington and Lincoln, who rose to greatness because of their circumstances. Lump them all together if remembering presidents is a good idea.

Someday the third Monday in January may be commemorated as Human Rights Day, recognizing the works of MLK,  James Griffin, John Rawls, Charles Beitz, Joseph Raz, John Tasioulas, and maybe Martha Nussbaum  to make sure the list is inclusive. While these people are alive, no one will agree that any one of them is worthy of a day to remember their work. Perhaps “Dead Philosophers’ and Activist Preachers’ Day” will combine them all together with enough anonymity that everybody agrees  that all made a contribution.

Simplicity of the MLK Message

MLK had a relatively simple message: end racial discrimination.  His broader message was that we call all live together united.

He will not be remembered as a philosopher arguing the nuances of Human Rights.  He will be remembered as a gifted communicator and in the mind of many as a martyr to the cause he espoused. He really was not a martyr.  He was just murdered. The man who killed him did not hate his message; he just wanted to become famous for killing somebody who was also famous.

MLK was an agent for social change that the country still desperately needs.

Until his dream has become reality, a day to commemorate his message is appropriate without being complicated by conflicting messages.  Human Rights Day and Civil Rights Day are fine.  Dead generals need their rest.