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Federally Speaking* by Barry J. Lipson (#56)

Number 56

Welcome to the 56
th
and final issue of the first series of the Federally Speaking Editorial Column, that has appeared since
2001 on http://www.pawd.uscourts.gov/Pages/federallyspeaking.htm, the website of the United States District Court for the
Western District of Pennsylvania (WDPA). Federally Speaking, which is presented for ALL interested in the Federal Scene,
was originally compiled for the members of the Western Pennsylvania Chapter of the Federal Bar Association and all FBA
members, and published in the Lawyers J ournal, the Journal of the Alleghany County Bar Association (ACBA). Its purpose is to
keep you abreast of what is happening in the Federal arena, whether it be landmark U.S. Supreme Court decisions, new Federal
regulations or enforcement activities, heads ups on Federal actions and inactions, and/or other Federal legal and related
occurrences of note. I ts threefold objective is to educate, to provoke thought, and to entertain. Thank you WDPA for your past
7 years of support, and ACBA & FBA for launching us. We dedicate this issue to You and to our Constitution & Bill of Rights.

LIBERTYS CORNER
Problems Are J ust Solutions Waiting To Happen,
Be Them Homegrown Or Gifts Of Oily Strangers
Thoughts like these bombarded my consciousness as I return by bus from a goodwill visit to our neighbor
to the North. Entering with a warning not to crack jokes, many of us clutching Passports, we anticipated a
serious retreat from the open borders of the past. But a good humored Canadian official only asked us if we
had a Passport or drivers license and birth certificate, and when he saw some of us searching added
anywhere on the bus. Upon receiving general affirmative oral responses, he passed us through.

Getting back into the States, however, one of us had to reveal that she was born in suspicious sounding
Sandusky, and then there was a brief perusal of several of our Official Photo IDs (some refraining
from showing Passports to avoid any suspicion that might be engendered from visa stamps), and we were
again easily passed through.

I will share here some of my other musings, thoughts, analysis, mulled-over problems, and possible
kernels of solutions; using, hopefully, sufficient and diverse words and phrases so that they will be
of interest to both you and to the intrepid Google spiders, scurrying hither and yon all over the Mega-Web.

Problem Solvers Toolbox
But first, lets examine my analytical Problems Are J ust Solutions Waiting To Happen Toolbox, filled
in part with both universal and trite truisms, osmotic revelations, practical working tools, and my perhaps
skewed world-views. But to best use this toolbox, from the get-go you must share my heartfelt belief that
more good than bad will happen in both our beloved Country, and in our personal universes. First, your
general tools should include: Persevere! In my experience it is always troublest before the triumphacy,
i.e. darkest before the dawn. If you dont give up when youre ready to despair, youll win. Be
Prepared! Remember Marching Thru Georgia my not be referring to Union General Shermans 1864
March to the Sea. Half-Full! The glass is always at least half-full, right? Self-fulfilling Prophecies Come
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True! If you believe you can, you can; if you believe you cant, you cant. Face-Saving Uber Alles! If you
make sure the other side can save face, you will save the day for your side. Everyone A Winner! The
best solutions leave both parties happy, unhappy, happily unhappy or unhappily happy, but not one happy
and the other unhappy. Declare Victory! Whatever happens, declare victory and tenaciously tackle the next
task Ugh, Politics! But, beware, in ALL human endeavors politics influence outcomes, and regretfully
must be factored into the winning equations. Now two other key tools, the Cracker-Barrel and the Razor.
Cracker-Barrel Wisdom
Like, modern poets Carl Sandburg and Robert Frost, decked out as harmless old gaffers dispensing
cracker-barrel wisdom (Dickstein, Going Native, AmericanScholar.org, Winter 2007), this folksy art-
form can be highly underrated. Avail yourself of the magic and wonder of this osmotic [OZmotic"] tool to
transfer wisdom from the wiser to the nescient, inducing the unwitting diffusion of knowledge from the
sages higher concentration of experience and wisdom, to the unlettereds place of lesser stores of
knowledge and sophistication, tending towards equalization. Such dispensing of cracker-barrel wisdomis
a wonder to behold. I have seen it at work with my fellow Infantry Soldiers seeking informal counsel from
the one among them they learned had just passed the Bar (the non-alcoholic one); with senior citizens being
shown the mystic powers, to them, of the computer; with persons desiring to start small businesses; and
with senior executives of major multi-national companies. The Sage shares what seems to him or her to be
the obvious, to be cracker-barrel wisdom, his store of knowledge gained through education and
experience. The uninitiateds, to whom this is at first all Greek, listen, listen a little more, listen just a bissel
more, and then, Voil!, something clicks, and sparkles of comprehension forms in their eyes.

But it is not always so. Too many have blinders on. They can see the Pot-of-Gold in front of them, but not
the lions to the left or the tigers to the right. They resist even nibbling from the barrel. I have seen this in
Senior Executives with obvious illegal business schemes who plaintively (actually defensively) inquire:
Can you keep the Justice Department at bay until I retire in three years (I could, but didnt actually need
to as I later dissuaded them from going forward); in fair-haired marketeers who admit various versions of
I dont care if the Chinese will own my companys technology in 10 years, this joint venture will make me
look good now and I dont expect to be here then; and in those who cling to negativity, such as you cant
negotiate with railroads (you can negotiate with anyone where you have something they want -- I did, and
was perhaps the last to sell a tie treating plant to a RR along with the associated environmental liability). So
offer viable lawful alternatives, be persistent yet intuitive, follow through and, most important, be creative.
These be Jedi and Spockian Rules by which to live long and prosper.

Occams Razor
Just one more tool for now, Occams sharp, well-honed Razor. William of Ockham, a/k/a "Occam", not an
ancient Greek (or perhaps a Scot) as I had at first thought, but a fourteenth-century English Franciscan friar
and philosopher (1285-1349), was a strong proponent of extreme stinginess, that is of applying the "Law
of Parsimony, now better known as Occam's Razor, to solving problems. Philosophically, Friar William
shaved the chaff from the kernel of wheat to arrive at the simplest solution. Entia non sunt multiplicanda
praeter necessitatem, he proclaimed (translated: "Entities are not to be multiplied beyond necessity").
What does this mean? It means that, all things being equal, until shown to be wrong, the simplest
explanation is the best one, and then the next simplest, etc, etc., etc. Thus, in explaining any phenomenon,
you should make as few assumptions as are necessary to the task [ass being the first part of any
assumption, and the fewer asses the better]. Or, to be simpler still, the simplest explanation that covers
all the facts is likely to be the correct one. While this is not an infallible rule or law, it is a very useful
tool which has served science well over several centuries" (Barry Williams Blog, 10-03-2007).

Royal Oil & The Oil Spoilers Musings
Nowadays oil seems King! Lets unsheathe Occams Razor and shave away the complex and convoluted
explanations, hypothesis, rationalizations, alibis and excuses relating to oil, and see what we are left with.
Let us hypothesize that an oil family is in control of the White House, and oil prices are at an all time high.
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We need not agonize over such additional possible factors as the failures to regulate speculators, to
implement price controls (as in the 70s), to utilize our significant oil reserves, to persuade Royal oil family
friends to open their spigots, to stop subsidizing oil companies, to impose windfall profits taxes, etc., or to
debate the causal effects of alleged vast deficits, declining dollar, and pre-9/11 planned preemptive strike
on oil-rich Iraq. Occams Razor gives us the presumptive answer; and the burden of proof shifts.

Likewise, apply Occams Razor to the hypothesis of an apparently influential Vice President, with a close
affinity to a hypothetical now offshore headquartered Hell-i-bent-on contractor. Then add the
hypothetical fact that this particular hypothetical contractor blatantly received the lions share of the
hypothetical non-bid Iraqi bonanza. What oily conjecture would Occam draw?

Not only is oil limited in supply, but being a veritable chemical storehouse it is too valuable to burn. So
since the oil crisis of the 1970s we as a nation should have put forth a Man on the Moon effort to
develop alternate energy sources (and my client, the old Koppers Company, who was then a leader in coal
gasification, would have loved this). Needless to say, both Political Parties apparently dropped this ball.

In my musings on Sunday, June 22, 2008, your columnist wrote the following possible action plan to
counteract such oil spoilers: A world-wide contest with a $1 Billion reward to reward workable best
alternative energy solution? Sagely, presumptive Republican Presidential candidate John McCain
proposed the next day a similar, though less ambitious, plan, to wit, to offer a $300 million prize to
develop a car battery that will leapfrog today's plug-in hybrids.

Other oil musings that Sunday included: What about creative, non-environmentally obtrusive ways, such
as slant drilling, to get at our local oil reserves? And also: Elimination of oil company subsidization and
diverting such savings to, in the public interest, subsidizing non-commercial mail, and public and air
transportation, re-regulating the latter; and the imposition of windfall profits taxes to de-royalize oil,
and a similar use of these proceeds. Feel free to muse on.

What Free Market? Musings
We are told that the accelerating oil price increases are just the free market at work. However, it feels
like we are being pecked to death by OPEC, the Organization of Petroleum Exporting Countries. There is
nothing free market about OPEC, a cartel established in 1960 of thirteen countries which are major
producers and exporters of crude petroleum who continuously enter into agreement on the level at which
the member countries should fix the price of their crude petroleum exports by production quotas
(Dictionary of Political Economy; Bannock et al., 318 (1992)). Sounds to me like an Antitrust Conspiracy
and not the free market at work.

Antitrust Conspiracy, you say? While one might argue lobbying or the governmental action exemption,
the truth is that these governments have taken over these oil businesses from the private sector and are
operating them and acting as commercial enterprises. As such we should be acting severely, both severally,
and jointly with other antitrust enforcers, to break up and eliminate this antitrust conspiracy, as we do with
other free market perverting international cartels; and/or work diplomatically to break up this oil monopoly.
But I guess the Neville Chamberlain 1938 Munich approach appears preferred where oil is concerned.

The Undermining of the Separation of Church & State? Musings
Remember, the Pilgrims and others came to Haven America to escape the persecutions of State
Religions! Yet, it is current American folklore that the religious-right (and the U.S. Supreme Court) gave
George W. Bush the White House in 2000; and the religious-right returned it to him in 2004, using to get
out the vote the red-herring of who can marry/unite with whom. Whatever the truth may be, according to
TheocracyWatch, a partner project of Cornell University's Center for Religion, Ethics and Social Policy
(a/k/a the CRESP Center for Transformative Action at Cornell University), under "the Bush administration,
our country is experiencing a major transformation from a secular to a religious government. The
President's faith-based initiative is central to this transformation and raises serious questions about church-
state separation.... In his State of the Union address, Bush renewed a call for Congress to make permanent
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his faith-based proposals that would allow religious organizations to compete for more government
contracts and grants without a strict separation between their religious activities and social service
programs." Such religious zealotry also makes the erroneous assertion that the United States is a Christian
Nation, presumably based on a plurality of Americans associating with one or another of the multitude of
Protestant, Catholic and otherwise and/or unclassified Christian denominations, sects and groups, which
may or may not include Mormons (who actually also claim Jewish and American Indian spiritual roots).
Thus, undermining separation of Church and State, and reviving specters of the dreaded State Religion.

Even assuming Americas assorted conglomeration lumped together as Christianity could constitute
some kind of country-wide religious consensus, American Democracy is not the embodiment of the pre-
revolutionary concept of democracy, to wit, rule by the mob, religious or otherwise (see Platos
Republic, circa 360 BC). It is, instead, rule by the Majority with due regard to the Minority, which is
what has made American Democracy unique and revolutionary. Therefore, America is NOT and has never
been a Christian Nation, and this is fully borne out in our Declaration of I ndependence, the unanimous
Declaration of the thirteen united States of America, declared "In Congress, July 4, 1776," and in the U.S.
Constitution, on their face. Thus, our Deistic Declaration of I ndependence makes reference only to the
"Laws of Nature," Nature's God and "their Creator." As Raymond Fontaine, Ph.D., in Freedom of
Religion, 2007, observes: "Can you imagine what a terrible world it would be if instead of making
reference to Nature's God, Thomas Jefferson and his compatriots had said Jesus Christ? The entire
original character of the U.S. is owed to its Deistic origins as expressed in the Declaration of
I ndependence." (Emphasis added.) The Deistic explanation of the unexplainable (see below) is that a
supreme being exists and created the physical universe, but does not intervene in its normal operation.
Then too, in the U.S. Constitution there is no mention of God, Jehovah, Allah, the/their Creator, a Supreme
Being, Jesus, Buddha, Christianity, Islam, or any other religion. In fact, the only two references to religion
are both exclusionary and clearly establish that this is a secular Nation, respecting equally all religions.
Article VI , Section 3 clearly declares that "no religious test shall ever be required as a qualification to any
office or public trust under the United States, and the 1st Amendment unequivocally proclaims that
"Congress shall make no law respecting an establishment of religion. As further proof, the Constitution
does not require the President to take an Oath of Office to assume the Office of the Presidency as an Oath
may have a religious connotation of invoking a divine witness regarding his future acts or behavior.
Instead, Article I I , Section 7 provides: Before he enter on the execution of his office, he shall take the
following oath or affirmation: I do solemnly swear (or affirm) that I will faithfully execute the office of
the President of the United States, and will to the best of my ability, preserve, protect and defend the
Constitution of the United States." Emphasis added.

Indeed, if you define God as that unknown, and perhaps unknowable/unexplainable/inexplicable, factor
which started it all, there can be no atheists. And if you define religion as honest efforts to explain this
unexplainable/inexplicable factor, and faith as the unquestioning acceptance of one or another of these
explanations of this, the unexplainable, how can you honestly discriminate, subjugate or kill based thereon?

I t seems, however, that most Americans get it. The Pew Research Center's Forum on Religion &
Public Lifein a very recent major survey has found that most Americans do not have a dogmatic view of
religion. For example, the majority of those having a religious affiliation do not believe their religion
provides the only road to salvation. And a like number believe that there is more than one true way to
interpret their religions teachings. The lack of dogmatism in American religion may well reflect the great
diversity of religious affiliation, beliefs and practices in the U.S. For example, while more than nine-in-ten
Americans (92%) believe in the existence of God or a universal spirit, there is considerable variation in the
nature and certainty of this belief. Six-in-ten adults believe that God is a person with whom people can
have a relationship; but one-in-four including about half of Jews and Hindus see God as an impersonal
force. Therefore, it is suggested that with due diligence by those respecting Haven America and the
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Constitution, and having due regard to the faith and beliefs of all Americans, our essential Separation of
Church and State should prevail.

Taxatiousness & the Progressive Tax Musings
What is needed is more efficient Government not a more taxatious one ( Sickdreamz, Oct. 31 2007). Isnt
that the truth, and I personally find the idea of a Federal Flat Tax, like in Pennsylvania, intriguing, so as not
to have to waste ones time, energy and money seeking loop holes and special circumstances.

Putting aside the Flat Tax, we do seem to have the situation where the astute wealthy go largely untaxed or
under-taxed, while the middle and working classes actually pay in taxes a much higher part of their
earnings. But whenever discussion of raising the tax rate on the upper brackets occurs it is spun so that it
appears that everything from Dollar One will be taxed at the highest rate. That isnt true!

The U.S. Federal Income Tax is an example of a bracketed Progressive Tax, where brackets are created and
taxes on each subsequent bracket are at a higher rate. This is not a tax on the rich, as spun. Increasing the
tax on the higher brackets does not cause higher payments at the lower brackets. For example, a taxing
authority might levy a tax of 10% on the first $10,000 of income and increase the rate by 5% per each
$10,000 increment up to a maximum of 50% on all income over $80,000. Thus our Federal Progressive
Income Tax taxes equally across the board at each level/bracket of income, only taxing each higher level of
incremental income at a higher rate. The same incremental progressive taxation could be applied to capital
gains, which are now taxed basically as a flat tax. Of course, this whole equitable scheme is subverted if
loop holes and tax shelters, which are normally the luxury of, and used for the benefit of the wealthy, are
not also eliminated.

Corporate Responsibility Musings
We do not in reality embrace the pre-revolutionary concept of democracy, which was then defined as
rule by the mob; we do endorse, export and strive to embrace American Democracy, which is Rule by
the Majority with due regard to the Minority, at least thats what we have been taught in School.

Likewise, we do not endorse laissez fairecapitalism (from the French "to leave alone"); which doctrine in
its purest formexcludes government from interfering in anyway with the free market. Enterprises must,
while certainly working to earn exemplary returns for their shareholders/investors, operate with due regard
to the society/public that gives them life(corporations are merely artificial entities), their employees who
enable them to live and earn, and their customers/consumers/clients who are their life blood. Thus, the
necessity of governmental supervision to one degree or another. Indeed, the dire consequences of the lack
thereof are readily observable in our daily news. See, for example, the effects of unregulated speculation on
oil and gas prices; the effects of deregulation on the quality, quantity, price and scope of air service; and the
effects of the laissez faireregulation of sub-prime lending (which refers substantially to the practice of
making loans to sub-par borrowers on sub-standard collateral, with the intention of selling them off to
sub-intelligent third parties, and with the hope that they will not come back to bite you in your
subterraneous regions).

Then too, can any one employed by a public company, whether for profit or not for profit, truly be
worth, or justify earning, a total annual compensation of say $646 million (a real earnings figure)?
Couldnt the company buy the same services for $500 million, $100 million, $50 million, or even $10
million or less? And what about doing so while the company is in trouble, while it has negative earnings,
while the prices being charged to the public are going through the roof, and/or while justified claims
against it are being vigorously denied or contested?

A Progressive Income Tax applicable to such allegedly over-compensated employees, with very high top
brackets tax rates and no loop holes, may be an answer; denying income tax deductibility by the company
of such over-compensation payments, or both, another. Then too, windfall profits taxes can be utilized to
deprive enterprises of ill-gotten gains, such as obtained through price gouging, conspiratorial conduct, etc.

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How Then To Regulate? Musings
1776, the year of our Declaration of Independence, was when Adam Smith wisely warned in his Wealth
of a Nation that: People of the same trade seldom meet together, even for merriment and diversion, but
the conversation ends in a conspiracy against the public or in some contrivance to raise prices. Hence, as
we have already observed, the necessity of governmental supervision to one degree or another. This
basically takes one of two forms, either being regulated by the Antitrust Laws, which are the Rules of
the Game with regard to private enterprises; or becoming a regulated industry. Thus, either a company is
regulated as part of a regulated industry and its individual or industry prices and practices set/approved by
the regulatory authority (with a fair return normally built into the regulatory scheme); or it sets its own
prices and practices, so long as it does not do so in concert with any other industry members or otherwise
contravene public policies, and earns or suffers losses based on market factors and its ability to compete.

But be cautious! Society (or the industry desiring to be regulated, by petition to the government) must
make this choice; the enterprises involved must strictly abide by the rules governing this choice; and the
regulators themselves must resist the clouding of their efforts because of the hope of future employment
within the industry being regulated. Deregulation of industries that apparently in the public good should be
regulated, such as airlines because of the public interest and need to affordably service all areas of the
Country, appears to have been disastrous as prices rise and service deteriorates. A company or industry can
not have the benefits of both or avoid the responsibilities and liabilities of the choice applicable to it.

I mmigration Whos Hands Are Dirtiest? Musings
Whos hands are dirtiest, hard working ditch digging illegal Alien workers or Uncle Sam? It seems clear
that our government has the legal right and duty to control our borders, though one would hope the
government would do so in a rational and non-discriminatory manner. However, as will be discussed later,
once inside our borders the provisions and protections of the U.S. Constitution apply (see Habeas Corpus,
infra.), and if born within our borders, even of illegal immigrant parents, one has all the rights and
privileges of a U.S. Citizen, being a natural born American. But for the most part it appears our
government has NOT controlled our borders and our government has NOT enforced our laws against
domestic employers who employ illegal immigrants!
It may be interesting, even if tongue-in-cheek, to applying common law principles to guide us here, or so I
mused on that fateful bus trip. We could end it all simply with the phrase Rex non potest peccare, the
King can do no wrong, but that wont fly in 21
st
Century America. The first George W, after kicking out
the wronging King George, turned down the crown, and we have not offered it to the current one (except,
perhaps in not forcing him to pardon the telecommunications companies who allegedly broke the law at his
behest). Moreover, nowadays the government normally has waived it rights to sovereign immunity.

But, what about the governments unclean hands in not controlling our borders, and in not eliminating
attractive job opportunities that urgently call for the assistance of illegal aliens. Do these not constitute and
create attractive nuisances for poor aliens? The government surely knows aliens are likely to trespass
for such opportunities, knows many are children, knows that many can not read English, knows that they
will be severely damaged by the enforcement of our immigration laws, knows that this country and such
job opportunities are attractive, and knowing all this has failed to exercise reasonable care to eliminate
uncontrolled borders and attractive opportunities, which is a real nuisance (see Restatement of Torts 339).

And what if it can be shown that the government conspired with U.S. employers needing cheap labor to
induce aliens to illegally enter the country to perform such attractive labors, and as part of the conspiracy
did not enforce our immigration laws against such employers? Does that sound like entrapment? If so the
government must prove beyond a reasonable doubt that the defendant was not entrapped by government
agents. Then too, it can be argued that the government, though the added productivity of and the
additional tax revenues generated by illegal aliens, was unjustly enriched, especially if later the
government was to throw them to the wolves.

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The bottom line is that we, including even Amerinds, are all immigrants, most here for the same reasons as
the current ones, a better life and economic opportunities; that the non-terrorist, basically law abiding
(aside from immigration infractions), illegal aliens in our midst are not villains; that as is normally the case
there are equities (and inequities) going in both directions; that here all are innocent until proven guilty;
and that all need to be treated with dignity and under the umbrella of the U.S. Constitution.

Supreme Musing Uno: Habeas Corpus Lives!
Deliver the body alive! The latest Term of the U.S. Supreme Court appears to both shown a renewed
respect for the U.S. Constitution and the precarious nature of this renewal, as key votes have been 5-4. For
example in Boumediene v. Bush, 553 U.S. ___ (2008), the Supreme Court on June 12, 2008 ruled 5-4 that
foreign terror suspects detained by the U.S. government in Guantanamo Bay Detainment Camp have the
right to seek a Writ of Habeas Corpus in U.S. Federal Court, ordering the prisoner to be brought before a
Judge to evaluate his confinement (US Const, Art. I, 9, cl. 2; Federally Speaking Nos. 52, 49 & 48 ), thus
revitalizing the Constitution and the Federal Judiciary after seven years of a creeping civil liberties famine
(see just about all past issues of Federally Speaking). "The laws and Constitution are designed to survive,
and remain in force, in extraordinary times," Justice Kennedy writes for the Court majority. "Liberty and
security can be reconciled; and in our system they are reconciled within the framework of the law."

See also West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), where the hero of our
last Federally Speaking Column (No. 55; for promulgating while U.S. Attorney General the laudable
J ackson Prosecutorial Discretion Doctrine), U.S. Supreme Court Justice Robert H. Jackson, wrote: "The
very purpose of the Bill of Rights [and the Constitution] was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to
establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to
free speech, a free press, freedom of worship and assembly, and other fundamental rights [such as habeas
corpus] may not be submitted to vote; they depend on the outcome of no elections." Emphasis added.

Supreme Musing Dos: I rreversible Error
The Supreme Court also demonstrated the living nature of the Constitution in Kennedy v. Louisiana, 554
U.S. ___ (2008). Following on the prior recognition that there is no question that death, as a punishment,
is unique in its severity and irrevocability (Furman v. Georgia, 408 U. S. 238, 286-291(1972), Brennan, J.,
concurring), Justice Kennedy, also writing for the 5-4 majority, wrote: Consistent with evolving standards
of decency and the teachings of our precedents we conclude that, in determining whether the death penalty
is excessive, there is a distinction between intentional first-degree murder on the one hand and non-
homicide crimes against individual persons, even including child rape, on the other. The latter crimes may
be devastating in their harm, as here, but in terms of moral depravity and of the injury to the person and to
the public, Coker, 433 U. S., at 598 (plurality opinion), they cannot be compared to murder in their
severity and irrevocability. I bid. The Court thus engrafted into the Constitution the Biblical concept of
an eye for an eye, i.e. that the punishment not be greater than the crime (such as a life for an eye). See
Federally Speaking No. 30, Hatch: Three Bytes And Your Fried!

Speaking of irrevocability or the irreversible error associated with the death penalty, in Federal
Speaking No.20 we had reported on the case of Eddie Joe Lloyd where 17 years after his conviction for
rape-murder, DNA evidence conclusively proved that he was wrongly convicted. The sentencing judge,
Wayne County (Michigan) Circuit Judge Leonard Townsend, is reported to have advised at the time of
sentencing that he believed there was only one justifiable sentence, death by hanging, or as he called it
extreme constriction. This judge apparently regretted that under Michigan law he could not impose the
death penalty and, therefore, he could only sentenced Eddie Joe to life imprisonment. Luckily for Eddie Joe
and society, Michigan had prohibited Judge Townsend from committing such irreversible error. While a
reportedly unrepentant Judge Townsend himself was the one who ordered Lloyd released from prison,
Lucky Eddie wisely observed: Lady Justice is blind. Sometimes shes deaf. Sometimes the wheels of
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justice grind very slow. Sometimes they grind in reverse. Today the wheels are grinding forward
(emphasis added). Let use pray or affirm, and act, so that this forward motion continues.

Supreme Musing Tres: Guns, Police Powers & Beetle Bailey
In District of Columbia et al. v. Heller, 554 U.S. ____ (2008), decided June 26, 2008, a different 5-4
Supreme Court majority (Justice Kennedy switched blocs), while affirming the unconstitutionality of the
DC Gun Ban under the Second Amendment, clearly confirmed that the Court was not emasculating the
Governments Police Powers: Like most rights, the right secured by the Second Amendment is not
unlimited and nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or laws imposing conditions and qualifications
on the commercial sale of arms, or laws prohibiting the carrying of dangerous and unusual weapons or
weapons not in common use at the time. Thus, this too can be viewed, in balance, as a positive forward
decision, which while honoring the Constitutional right to bear arms, also set the wheels in motion to
protect the public. And the Courts may have much work here as our understanding of these rights leave
much too be desired. Too often, our understanding is no greater than exhibited by Beetle Bailey where, in a
classic 'strip,' after being bawled out by the Sergeant for taking off his shirt while on duty, and being
ordered to put it back on, heatedly retorted, 'No, I know my Constitutional rights.' When the perplexed
Sergeant asked, 'What rights,' Beetle emphatically responded 'The right to bare arms!' (Lipson, Corplaw
Commentaries, Madonna, Beetle Bailey And The Bill Of Rights, 1995.)

Grand Finale
I t I s The Worst Of Times? Many lament that with allegedly stolen elections, politicization of prosecutors,
the pursuit of the wrong enemy at the wrong time (or the right enemy at the wrong time), undermining of
the separation of Church and State, attempted stacking of the Supreme Court, and abridgement of the Bill
of Rights through the promulgation of Bills of Wrongs; the biggest deficit and highest gas prices in
history; seeming rampant veto-mania; and the Chiefs apparent belief that the Sovereign can do no
wrong, etc., etc., etc., we are on our way to hell in a hand-basket. However, it has been my observation
that while the pendulum of the human condition travels back and forth, back and forth, back and forth,
its center is always tending towards the improvement of the human condition an evolutionary-like
process/progression. In your columnists humble opinion, what is needed is for the nation to come together
and regain its focus, and to do that it is first suggested we go back to our founding principles as expressed
by Benjamin Franklin: "Those that can give up essential liberty to purchase a little temporary safety
deserve neither liberty nor safety" (Federally Speaking, No. 32); and Chief Justice John Marshall: To
what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits
may, at any time be passed by those intended to be restrained? The distinction between a government with
limited and unlimited powers is abolished if those limits do not confine the persons on whom they are
imposed (Marbury v. Madison, 5 U.S. (1 Cranch) 137; 2 L. Ed. 60 (1803)). I t I s The Best Of Times?
So as the Supreme Court is currently constituted, we are not now living in the worst of time. However, as
more and more is exposed to the light of day, it remains to be seen how the apparent abuses of recent times,
such as personnel policies and practices at the U.S. Department of Justice, failures of the regulatory process
in other agencies, lack of impartiality and even handedness, etc., will be rectified, so we can look forward
to reporting that we are, indeed, heading towards the Best of Times!
You may contact columnist Barry J . Lipson, Esq., former FBA Third Circuit Vice President, at CorpLawCenter,
by E-Mail ( bjlipson@gmail.com ) . The views expressed are those of the persons they are attributed to and are not
necessarily the views of the author or any other person or entity, and in many instances are to provoke thought.
This Column is dedicated to the preservation of the U.S. Constitution & the Bill of Rights.
*Emphasis added passim

Copyright 2008 by Barry J. Lipson