sample book excerpt

The Rosanne Ullman
Better Writing Group

We can provide editing services to get your book in shape for submission to a publisher or for self-publishing. This example is an excerpt from the book, Why You Are A Liberal—Or Should Be by Keevan D. Morgan, edited by The Rosanne Ullman Better Writing Group. It is available for purchase at www.yuraliberal.com, www.amazon.com and www.iuniverse.com.

I’m a lawyer, and for the most part, I agree with the general proposition that judges ought to declare the law, not make it. I have had to tolerate, and sometimes confront, many judges who ignored the law, and it is a galling experience. For the most part, however, neither Conservative nor Liberal judges ignore the law for so grandiose a purpose as that of changing the Constitution. Rather, they ignore the law for two other main purposes—one noble, and one ignoble. The noble reason is that it is human nature to listen to the facts, decide what is fair in one’s own mind, and then find law to apply to the facts, regardless of whether it is the correct law. When I am on the right side of the law, but a judge ignores the law or more often cites law that does not really apply to the case just because that judge wants to do what s/he thinks is right, I may be aggravated, but I understand. The ignoble reason is that all judges are politicians—the judiciary is a branch of government, after all—and judges have their personal agendas to fulfill as politicians. Sometimes that means horse-trading a decision with a colleague, making a decision in the hope of a higher appointment, pleasing the ward boss by making a decision in which the ward boss has an interest, or ensuring that one’s favored Presidential candidate takes office and can appoint others to the bench who will in turn ensure that the President’s agenda is not opposed by the judiciary. When such a decision is made, all I can repeat is what one of my partners once said to me: it creates a sinking feeling in your stomach that never goes away, because the decision is so anomalous to an experienced lawyer that the fix is obvious.

When Conservatives rail against “activist” judges who want to impose on the rest of the country their personal views of what the Constitution should say, rather than what is does say, they’re often referring to one of several politically charged types of cases. The cases tend to have society owning up to past injustices, which offends people who innocently supported the injustice. For example:

• Cases involving participation in the customs of the surrounding environment. Most Southern whites at one time were brought up to think it was perfectly normal and legal to prohibit African-Americans from drinking at the same fountain as white people, and just as normal and legal to make African-American children go to “separate but equal” schools that were of course not equal at all.

• Cases involving the protection the rights of the guilty to protect the rights of innocent, such as not allowing illegally obtained evidence to be used to convict a person of a crime. There is indisputably in such a situation a type of wrong to the victim and society that goes unredressed, even if it is for the greater good.

• Cases involving the preservation of what Liberals claim are inherent rights, and Conservatives claim are new rights, such as the right to an abortion or the rights of committed gay couples to receive the same benefits as married straight people.

The Conservative position on virtually every one of these issues comes up both legally wrong and morally wrong. In the moral sense, while there may be some independent philosophical merit to the Conservative position in a vacuum, United States history has not been written in a vacuum. That history places Conservatism on the wrong side of every social issue we have ever confronted from border to border and sea to shining sea—slavery, Jim Crow, trust-busting, Social Security, Medicare, the environment, unionization, you-name-it. We would still be ruled by a semi-feudal oligarchy of rich white men if Conservatism had its way. That oligarchy would be free, but no one else would be. In the legal sense, the Conservative position lost when the South lost the Civil War and, therefore, there is no more “original intent.” There is only original intent plus the intent of all the Constitution’s Amendments, including the post-Civil War Amendments that granted Congress the authority to pass legislation it thought necessary to carry out those Amendments’ intent.

No lawyer likes going to court and meeting a judge who will not apply the law because of outside pressure or his or her own sense of what is fair. The public never even sees these millions of cuts inflicted upon our legal system on a daily basis, except as litigants or jurors. Lay people serving on juries often do the same thing when they engage in the practice of “jury nullification” and refuse to follow the legal instructions given to them because they do not think it would be just to do so. To the extent that it has validity, the Conservatives’ “strict construction” argument reflects the natural distaste of being subject to a judge who refuses to follow the law because of his or her own agenda.

We Liberals have to some extent created our own “strict construction” problem, because we have often stretched certain parts of the Constitution to reach what we think is a just result. My mother had a phrase to describe her many children’s good times gone awry. When the crescendo of noise became too loud at a gathering of young people, or when the clock rang well past the departing hour, she would plaintively ask, “Do you have to run it into the ground?” We all knew then that we had crossed the line. Liberalism, not to mention my own profession, lawyering, suffers from the same problem.

Here is how it works, or rather doesn’t work, in the legal system. A legislature passes a law. Someone breaks it and is punished. The next time someone breaks it, some lawyer says, “Yes, Judge, but . . .” and gets the client off the hook. This, “but” makes perfect sense as an exception to the rule and is accepted by society. The next violation is followed by a new “but” from a new lawyer, drawing on the exceptional quality of the first one, but expanding it. After a sufficient time passes, there is no longer any of the original rule of law that started the whole process—only the “buts” remain. This is all justified by the lawyers saying that conditions and laws have to change, or we would still be kneeling in front of some king and throwing clods of dirt at each other to signify we have just sold our houses (people who can neither read nor write being able to remember the clod-throwing), rather than accomplishing the same thing in the more civilized fashion of recording a deed. No one can contest the initial justification, which is self-evident. But, what happens in far too many cases, and in a hurried fashion, is that we become so interested in protecting a right that we try to protect every tiny facet of every right, bogging everything down and giving credence to minor claims and injuries that should be resolved either in clearly defined and carried-out law or outside the law entirely.

Liberalism operates the same way. Discrimination is bad, and with the possible exception of those smallpox-laden blankets given to the Native Americans, African-Americans suffered the worst torment of anyone in this country. Having come to the sound conclusion that discrimination against African-Americans and other ethnic groups must be addressed, however, Liberalism tends to run it into the ground. Even the slightest slight becomes grounds for federal intervention. Liberals should rein in this natural inclination of their philosophy. First, larger grievances are devalued by the insistence upon redressing minor ones. Second, it gives Conservatives the opportunity to attack the fundamentally solid Liberal positions by pointing to extremes that caricature those positions. We should not give up ourselves in this way to the Conservatives, whose positions are fundamentally weak. For example, comedians poke fun at “Indians” who reject that geographically politically incorrect name in order to substitute the name of an Italian map maker.

One example of how Liberals have made this error is the way we went about justifying the wholly Constitutional and wholly worthy civil rights laws of the 1960s, which was to forget their basis in the human rights inherent in the 13th and 14th Amendments and base them instead upon other rather arcane and inapplicable provisions of the Constitution. For instance, in Katzenbach v. McClung, the Supreme Court upheld a portion of the 1964 Civil Rights law barring discrimination in restaurant service by finding that Congress correctly could conclude that by obtaining a good portion of their food for resale from out of state, the service significantly affected interstate commerce, a federal concern. This decision certainly had a good societal effect, and maybe a reasonable person could agree with the reasoning at a stretch, but the decision was basically dishonest. The Commerce Clause was not put into the Constitution as a civil rights guarantee. It is not only dishonest to turn it into that, but relegating civil rights issues to the level of interstate commerce is demeaning.

The question then becomes how to have courts both apply the law and foster a Liberal society. The answer is to understand that, as written and as modified by its Amendments, the Constitution is a facially liberal document, so all we have to do is read it, and apply what it says liberally. The Constitution is the Liberal’s friend, not the Conservative’s, and we should not be afraid of interpreting it as such. That will dispatch the Conservatives’ “strict construction” argument, as well as their narrow vision of our governmental structure.

Regarding the Civil Rights Commerce Clause decision, then, the law would have had a more solid foundation—and it would have been more in step with the times and much simpler—if the Supreme Court had just said that discrimination at restaurants stripped the customers of their 14th Amendment right not to be deprived of their liberty, or denied them their 14th Amendment right to equal protection of the law to peacefully shop wherever other persons within the jurisdiction of the United States were allowed to shop, or deprived them of any number of other Constitutional guarantees. If the Court could not uphold the law on one of these legitimate bases, then it was time either for a new law or maybe for civil strife to effectuate the change politically, but it was not time to uphold the law on the basis that restaurant service discrimination violated the Commerce Clause. There is no reason to contrive the Constitution, because the Constitution is on the Liberals’ side.