What Next for PBC? A Golf Course?

I was appalled when I read The Dispatch-Argus’ lead editorial on Sunday, “Rock Island Board, say yes to PBC courthouse plan.”

The editors wrote, “Kudos to the Public Building Commission for voting to set a hard and fast deadline for Rock Island County to either demolish or renovate the old courthouse.

“We urge members of the county board ... to endorse the PBC-approved intergovernmental agreement that says if a buyer has not come forward to purchase the courthouse, or if no funds are available to renovate the building by July 18, 2018, board members will hand the deed over to the PBC for demolition.”

Since my editor has asked us to “share our views,” here’s my opinion ...

On Oct. 1, 1981, the PBC was established by the county board and taxpayers were solemnly assured in the resolution creating that commission, that “the sole purpose of such Public Building Commission” was “to provide a good and sufficient jail.”

That “good and sufficient jail” was built and completed 25 years ago. Now, 27 years later, a runaway PBC, an unprincipled county board and an overreaching chief judge want to use that PBC to demolish the antiquated century-old courthouse.

The PBC was created to build a jail. Where was it granted any other power or authority? Where does it get authority to issue ultimatums? To engage in urban renewal? To create landfills, or golf courses? How does any honest public official—judge or county board member—stretch a grant of authority to build “a good and sufficient jail” and claim with a straight face that it authorizes courthouse demolition 26 years later?

This is not a situation where the courthouse had to be demolished so that the land could be used to build the new jail in 1981. The new jail was built on land formerly occupied by the old St. Joseph’s Catholic School, not on the land presently occupied by the courthouse. The old obsolete courthouse remains in use next to the new jail even today.

Make no mistake, I think the old courthouse probably should be taken down for reasons I have expressed in earlier op-eds. But I think the county board should have the guts and integrity to do the job itself.

If a tax has to be levied to pay for the demolition, it is the job of the county board to levy that tax, rather than sloughing off the decision to an un-elected commission.

America fought a revolution over the principle that our taxes were to be levied by our elected representatives—not by a British Parliament—and not by commissioners or dogcatchers.

In 1981, in setting up the PBC, the county board operated under statutory authority granted to the counties by the Illinois Legislature, which gave counties a choice. They were authorized either (a) to set up a commission to be used whenever necessary, or (b) to set up a commission for the “limited purpose” of doing one or a limited number of projects.

The Legislature did not require county boards to hold a referendum before initially setting up the building commissions.

Rock Island County chose Option B. Its commission was set up for a limited, sole purpose, providing “a good and sufficient jail. The Legislature also required a referendum “be submitted to the electors ... and approved,” before that purpose can be expanded.


This is the third effort by the county board and the judges to ignore or stretch the plain language of the statute.

In 2001, three criminal courtrooms, with jury rooms and offices, were built in the Justice Center. Fair and reasonable argument could be made for that use of the commission there.

Criminal courtrooms at least have an arguable connection with a jail. (I retired before those courtrooms were finished, and never used them). Then in 2015, a whole new courthouse was begun.

I have expressed my opinion that the use of the commission without a referendum was illegal. Now, in December of 2017, the commission is about to be—in my opinion—used again in a way no rational citizen would ever have imagined back in 1981 when the taxpayers of the county were assured that the commission was created for the “sole purpose” of building a “good and sufficient” jail.

I don’t believe a good end—getting rid of an obsolete courthouse—justifies using means not authorized by law—without the voters first granting approval by referendum.

In my opinion, this all stinks!

Posted: QCOline.com December 21, 2017
Copyright 2017, John Donald O'Shea

Democrats Seek to Abuse Impeachment Powers

Now that John Conyers (D), Roy Moore (R) and Al Franken (D) have been accused of sexual misconduct, Democrats are salivating to revisit the allegations of sexual misconduct made prior to the election against then-candidate Donald Trump.

Walking talking-points, the likes of Eugene Robinson, bray, "If Congress is going to probe the conduct of Conyers and Franken, it must also investigate the multiple, believable allegations of sexual misconduct against Trump."

But why?


Six Democratic congressmen, including Rep. Luis Gutierrez of Chicago, want to impeach President Trump. But are they willing to add to their so-called articles of impeachment charges of sexual misconduct?

If so, are they willing to bring similar charges against Conyers and Franken? Members of the House and Senate are not subject to impeachment. Rather, under Article I, Section 5, "Each house ... with the concurrence of two thirds, can expel a member."

Or is the rule, only Republicans should be impeached.

Indeed if candidate Roy Moore has to go based on 40 year-old allegations, why shouldn't Conyers and Franken be cashiered for their more recent "misdemeanors?"

Are there photos of Moore's alleged misconduct? Of Franken's?

Article II of the U.S. Constitution provides "The President, Vice President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors."

Article 1 provides that the House has sole power to bring charges of impeachment. If charges brought pursuant to a majority House vote, the Senate must try all impeachments, "and no person shall be convicted without the concurrence of two- thirds of the members present."

The question really is, "what is a high crime or misdemeanor?" During the attempted impeachment of U.S. Supreme Court Justice William O. Douglas (one of the court's great justices) U.S. Rep. Gerald Ford gave a very practical definition: "An impeachable offense is whatever a majority of the House of Representatives considers it to be."

It was on that basis, that President Bill Clinton (quite wrongfully, in my opinion) was impeached, but not convicted. But Ford's understanding is not what the framers understood or intended.

The framers borrowed the phrase "high crimes and misdemeanors" from English experience and history. Parliament had impeached for the misuse of public funds, abuse of political (not sexual) power, neglect of duty, corruption, and encroachment upon the prerogatives of the legislature.

For example, English Lord Chancellor Francis Bacon, was impeached for corruption and taking gratuities - "bribes" - from litigants. Charles I was charged with treason for waging war against Parliament, and the people therein represented, and for abuse of power- for encroaching on the prerogatives of Parliament, according to "The Enduring Constitution," by Jethro Koller Lieberman.


American President Andrew Johnson (1867), Justices Samuel Chase (1804) and William O. Douglas were charged with acts done while they held office. Richard Nixon also would have been, had he not resigned.

To revisit charges of sexual misconduct against Mr. Trump before the election, or to examine additional charges that could have been leveled at that time, which weren't, would be a gross abuse of the power of impeachment.

In an impeachment, the Senate acts as the jury. But the charges against Mr. Trump - made before the election - have already been passed upon by another jury - the ultimate jury - the people of the United States, voting in the 2016 presidential election.

The voters were fully aware of the allegations. They had been relentlessly broadcast by the press, Democratic politicians, and anti-Trumpists across TV, cable, radio, newspapers and the internet. And the voters elected Mr. Trump.

There is something utterly undemocratic about 67 Senators nullifying a presidential election - the considered will of the American people.

(I am not saying that the Senate could not convict a president of a pre-election "high crime or misdemeanor" that was unknown to the voters on the day of elections that only comes to light later).

Mr. Lieberman writes, "Disapproval of presidential policies was not made a ground for impeachment, and it is generally agreed that the House abused its power in impeaching President Andrew Johnson in 1867 because it disliked his policies."

Posted: QCOline.com December 7, 2017
Copyright 2017, John Donald O'Shea


Authors Note: Below is the op ed as originially submitted to my publisher, before their editorial changes.






                     A LITTLE IMPEACHMENT LAW AND OPINION



Now that John Conyers (D), Roy Moore (R) and Al Frankin (D) have been accused of
sexual misconduct, Democrats are salivating to revisit the allegations of sexual
misconduct made prior to the election against then-candidate Donald Trump.


Walking talking-points, the likes of Eugene Robinson, bray "If Congress is going to
probe the conduct of Conyers and Franken, it must also investigate the multiple,
believable allegations of sexual misconduct against Trump." But why?

Six Democratic Congressmen, the likes of Luis Gutierrez of Chicago, want to impeach
President Trump. But are they willing to add to their so-called articles of impeachment
charges of sexual misconduct? If so, are they willing to bring similar charges against
Conyers and Franken in their respective houses? [Members of the House and Senate
are not subject to impeachment. Rather, under Article I, Section 5, "Each house ... with
the concurrence of two thirds, can expel a member."]


Or is the rule, "only Republicans should be impeached. Indeed if candidate Moore "has
to go" based on 40 year-old allegations of sexual misconduct, why shouldn't Conyers
and Franken be cashiered for their more recent "misdemeanors?" Are there photos of
Moore's alleged misconduct? Of Franken's?



Article II, Sec. 4 of the U. S. Constitution provides "The President, Vice President,
and all civil officers of the United States, shall be removed from office on impeachment
for, and conviction of, treason, bribery, or other high crimes and misdemeanors."


Art. I, Sec. 2 [5} provides "The House of Representatives shall ...have the sole  power of impeachment." That means the House of Representatives has the sole power
to bring charges (to "impeach"). That charge is brought pursuant to a majority vote.

Art. 1, Sec. 3 [6] provides, "The Senate shall have the sole power to try all
impeachments. ... and no person shall be convicted without the concurrence of two-
thirds of the members present."

So the question really is, "what is a high crime or misdemeanor?" During the attempted
impeachment of U.S. Supreme Court Justice William O. Douglas (one of the court's
great justices) Congressman Gerald Ford gave a very practical definition: "An
impeachable offense is whatever a majority of the House of Representatives considers
it to be." It was on that basis, that President Bill Clinton (quite wrongfully, in my opinion)
was impeached, but not convicted. But Ford's understanding is not what the framers
understood or intended. The framers borrowed the phrase "high crimes and misdemeanors" from English experience and history. There, the phrase took its meaning from English Parliamentary experience. Parliament had impeached for the misuse of public funds, abuse of political (not sexual) power, neglect of duty, corruption, and encroachment upon the prerogatives of the legislature. For example, the English


The Lord Chancellor, Francis Bacon, was impeached for corruption and taking gratuities -
"bribes" - from litigants. Charles I was charged with treason for waging war against the
Parliament, and the people therein represented, and for abuse of power- for encroaching on the prerogatives of Parliament. "Our Enduring Constitution," Lieberman, (1997) p. 92.


In America, President Andrew Johnson (1867), and Justices Samuel Chase (1804) and
William O.Douglas were charged with acts done while they held office. Richard Nixon
also would have been, had he not resigned.

To re-visit the charges of sexual misconduct leveled against Mr. Trump before the
election, or to examine additional charges that could have been leveled at that
time, which weren't, would be a gross abuse of the power of impeachment. In an
impeachment, the Senate acts as the jury. But the charges against Mr. Trump - made before the election - have already been passed upon by "another jury" - the
ultimate jury - the people of the United States, voting in the 2016 Presidential election.


The voters were fully aware of the allegations. They had been relentlessly broadcast by
the press, Democratic politicians, and anti-Trump-ists across TV, cable, radio, newspapers and the internet. And the voters discounted the allegations and elected Mr. Trump President. 

There is something utterly undemocratic about 67 Senators nullifying a Presidential election - the considered will of the American people. (I am not saying that the Senate could not convict a President of a pre-election "high crime or misdemeanor" that was unknown to the voters on the day of elections that only comes to light later).


Finally, Mr. Lieberman writes, "Disapproval of presidential policies was not made
a ground for impeachment, and it is generally agreed that the House abused its power in impeaching President Andrew Johnson in 1867 because it disliked his
policies."

A modern-day Christmas Carol

Do you make charitable donations? Christmas donations? If so, how do you decide to whom you will give? Do you ever wonder whether the money that you give really goes for your intended purpose?

As I have grown older, I have come to believe that my donations should go to those who have the greatest need - those incapable of caring for themselves. I also have come to believe my donations should be local. As an old curmudgeon, I want to be in position to see that the organization that solicits my donation is faithfully using the money efficiently and consistently for their stated charitable purpose.

There is an organization in the Quad-Cities simply known as "The Arc." Its main office is on 9th Street in Rock Island. The Arc was founded in 1952 by parents of children with either physical or mental disabilities.


I write to ask you to consider helping The Arc this Christmas and beyond.

I write to say a personal thank you to The Arc. On June 1, 1973, my wife was pregnant. A few days later, our son was born. Hours after his birth, we were told by my friend and pediatrician, Dr. Martin Greenberg, that Tom was seizuring, and that his EEG showed chaotic electrical patterns in all regions of his brain.

Like most parents, we ran from Chicago's Children's Memorial, to Iowa City, to Mayo, in hopes something could be done to change Tom's future. Nothing could. His mom and I raised him into his 20s. He spent time at The ARC's (it was then known as the "ARC" it is now called "The Arc") Opportunity Center in Moline, and then at Blackhawk Special Education.

And then something happened. His mom, who had been on the old ARC Board, learned there was a vacancy at an ARC group home in Moline. She felt this eight-person facility was the best of all the ARC facilities. She felt that the time had come to place Tom.

At first, I balked, but her arguments were persuasive.

We were getting older? A time would come when we'd be incapable of caring for Tom. He'd be well cared for and with peers. He'd have his own home. She convinced me, and we placed Tom (and his Rockola Jukebox).


It was probably the best decision we could ever have made for him. It takes caring people to provide 24-hour care for eight physically and/or mentally disabled adults.

Today, Tom is healthy, and happy. He views the group home as his "home." He enjoys visiting with us every week, but he is always ready to go back to "his house." He has friends, Marla and Joe, there.

Today The Arc runs 14 small six-to-eight-person group homes. In addition, it provides Arc Industries. There, its clients, among other things, make cardboard boxes of every size and shape. (If you need boxes - one or a thousand - call and give them your business).


Other Arc clients clean the Butterworth Center and the Lodge at Blackhawk State Park. The Arc is a 5-1(c)(3) not-for-profit organization. Today, it employs a staff of 219 persons; 171 of those are directly involved with care of the disabled clients; 142 provide direct support (primary care), and 29 are either on-site group home supervisors, or case workers. The remaining 48 provide staff support - including the executive director, and the director of development, etc.

Nearly 80 percent of The Arc budget goes to staffing, 4.5 percent to supplies,. 4.7 percent to maintenance. 1.6 percent for transportation (the 18 vans used to transport clients and staff), 3.62 percent covers miscellaneous expenses. and 8.7 percent goes for interest expense.

In 1891, Pope Leo XIII wrote of the duty of the state to provide for those "in exceeding distress ... without any prospect of extricating themselves from their extreme necessity."

When children of God are disabled, unable to care for themselves, and living in our community, should anyone - other than perhaps family - occupy a higher place in our plans for charitable and Christmas-giving?

Do we wait for the state to provide them welfare, or should we, at Christmastime, include these - as well as your favorite needy - in our charity?

Posted: QCOline.com December 5, 2017
Copyright 2017, John Donald O'Shea

Thanksgiving Day through the Centuries

     A Day to be Thankful for the Sacrifices of all our Ancestors

Thanksgiving day is this Thursday. When you wake up, you'll roll out of bed, into a room heated by your gas furnace. There will be a solid roof over your head.

You'll turn on the electric lights and television. You'll turn on the water to brush your teeth and take a warm shower. You'll go to your refrigerator and get milk, bacon and eggs.

You'll check to see if the turkey you purchased is thawed for cooking in your electric or gas oven. For last minute items, stores will be open. As the day progresses, your odds of being attacked by natives are infinitesimally small.


Life in colonial America wasn't this safe and convenient. The early European colonists came to America for a myriad of reasons.

Jacques Cartier first sailed to America in 1534, on behalf of the French King, in search of gold, spices and a northern passage to the Orient.

A year later, Cartier returned in three small ships. This time, he establish a base or settlement at what is now Quebec, explored the St. Lawrence, as far as what is now Montreal.

On Oct. 11, he returned to winter at Quebec. It was too late in the year to recross the Atlantic to France. Scurvy set in. Nearly every Frenchman was stricken. In his journal, Cartier wrote, "out of 110 that we were, not ten were well enough to help the others; a pitiful thing to see."

There were no supermarkets where they could buy food, and fruits with Vitamin C. They were saved only when Domagaya, an Indian, told them of a concoction, apparently made from arbor vitae bark, which cured the scurvy, but not before 25 Frenchmen succumbed.

From mid-November 1535 until mid-April 1536, the small French fleet sat frozen in the ice, and fishing was impossible. They survived on salted game and fish, prepared before winter came.


Jamestown was an investment of the Virginia Company of London. Like the French in Canada, the English investors wanted a route to the orient, gold and gems. In December of 1606, 143 colonists sailed from England to Chesapeake Bay. On May 14, 1607 they selected a location on the James River to build their settlement, Jamestown.

The location, chosen for reasons of defense, with the coming of summer proved to be a malarial swamp. Worse, they arrived too late to plant crops. As each wild turkey was taken, their food supply moved further from the safety of the settlement.

By spring, before expected supply ships could arrive, more than 100 colonists had died of illness, starvation or small-scale Indian attacks.

Beginning in the spring of 1608, more settlers arrived. But then came the winter of 1609, the "starving time." When spring 1610 came, only 60 of 400 were still alive.


On Dec. 21, 1620, the Pilgrims - 102 of them - sent their first landing party ashore at what has come to be known as the Plymouth settlement. They were fleeing religious persecution, and immigrated to practice their faith as they saw fit.

During that first winter scurvy set in. Many of the men became too sick to work. Gov. William Bradford wrote, "of these one hundred persons who came over in this first ship together, the greatest half died in the general mortality, and most of them in two or three months' time."

Eighteen women had made the voyage: 13 died that winter; one more in May. Only four of the 18 lived to see the 1621 "autumn harvest celebration."

So, as Thanksgiving dawns this year, consider what you have and compare it to what the early colonists had.

They chose to come, anticipating the hardships of making their lives in the wilderness. In America of 1534-1620, their were no stores, or supermarkets. No houses, heat, air-conditioning, electricity, running water, sanitation systems or police to protect them. They brought with them no skilled doctors; no antibiotics.

They and their descendants began America so we would be free of the demands of kings and over-zealous churchmen, and free to earn our livings as we saw fit. So turn off FOX and CNN for one day, and be thankful for all we have in America.

Posted: QCOline.com Nov. 21, 2017
Copyright 2017, John Donald O'Shea

Socialism - Rerum Novarum Revisited

My opposition to "socialism"is grounded on papal teachings.

To remedy economic inequalities, socialists, working on the poor man's envy of the rich, strive to do away with private property.

They hold that by transferring property from private individuals to the state, the present inequitable state of things will be set right.

Each citizen will then get his fair share of whatever there is to enjoy.

But where socialist theories they are carried into effect, the working man is always among the first to suffer.

Socialist remedies are unjust. In addition to robbing the lawful possessor, they distort the functions of the state, and create utter confusion in the community.

When a man engages in remunerative labor, the impelling reason and motive of his work are to obtain property. And to hold it as his own.

If a man hires out his strength or skill to another, he does so for the purpose of receiving in return that which is necessary to satisfy his needs.

He therefore intends to acquire a full, real right, not only to the remuneration, but also the right to dispose of that remuneration as he pleases.

If he saves money, and invests his savings in land, that land is only his wages under another form.

His little estate so purchased should be as completely at his full disposal as are the wages he receives for his labor.

It is precisely in the power of disposal that ownership obtains - whether the property consist of land or chattels.

Socialists, therefore, by endeavoring to transfer the possessions of individuals to the state, strike at the interests of every wage-earner.

They would deprive him of the liberty to dispose of his wages, and the possibility of increasing his resources and of bettering his condition in life.

What is of far greater moment, however, is that the proposed socialist remedy is manifestly against justice. For, every man has by nature the right to possess property as his own.

Man is endowed with reason.

Therefore, it must be within his right to possess things not merely for momentary use, but to hold them in permanent possession. He must have not only things that perish in the use, but also those which continue to be useful for future use.

Man precedes the state. He possesses, prior to the formation of any state, the right of providing for the substance of his body and family.

The fact that God has given the earth for the use and enjoyment of the whole human race can in no way be a bar to the owning of private property.

For though God has granted the earth to mankind in general; no part of it was assigned to any one in particular. The limits of private possession have been left to be fixed by man's own industry, and by the laws of individual races.

Socialists assert that it is right for private persons to have the use of the soil and its various fruits, but that it is unjust for anyone to possess (own) outright the land on which he has built or brought under cultivation.

They do not perceive that they are defrauding man of what his own labor has produced.

Soil which is cultivated with toil and skill utterly changes its condition. It was wild before; now it is fruitful. Is it just that the fruit of a man's own sweat and labor should be possessed and enjoyed by any one else?

The principle of private ownership is in conformity with human nature, and conductive to the peace and tranquility of human existence.

The contention that the civil government should exercise intimate control over the family and the household is a pernicious error.

True, if a family finds itself in exceeding distress, utterly deprived of the counsel of friends, and without any prospect of extricating itself, it is right that extreme necessity be met by public aid, since each family is a part of the commonwealth.

Should the socialist philosophy prevail, no one would have any interest in exerting his talents or his industry. The equality about which socialists dream would result in the leveling down of all to a like condition of misery and degradation.

The main tenet of socialism - "community of goods" - must be utterly rejected. It injures those whom it is meant to benefit. It is directly contrary to the natural rights of mankind. It would introduce confusion and disorder into the commonweal.

The first and most fundamental principle is, therefore, that if one would undertake to alleviate the condition of the masses, private property must be inviolate.

Whose teachings?

Leo, XIII's: Rerum Novarum, May 15, 1891.

My words are his.


Posted: QCOline.com Nov. 7, 2017
Copyright 2017, John Donald O'Shea

Religious Freedom - Martin Luther's Legacy

Oct. 31 marked the 500th anniversary of the day Martin Luther wrote to his bishop, protesting the sale of indulgences.

Luther also sent along a copy of a document that has come to be known as his "Ninety-five Theses." Oct. 31, 1517 may very well be the most important day in the last 1,000 years of Western history.

It marks the beginning of the right of western European men to hold and practice their religious beliefs of choice -- even if deemed "heretical" by the Roman Catholic Church.

Luther did so at the very real risk of being burned at the stake. Before Luther, Catholics whose beliefs were deemed heretical, including those who had left the church to adhere to any reforming sect, such as the Cathars, risked being hauled before the Inquisition, and upon conviction being burned at the stake.

Where heresy was widespread, Rome initiated crusades to suppress the heresies. In 1209, the Albigensian Crusade was initiated by the Catholic Church against the Cathers in Languedoc - now southern France. That crusade, instigated by Pope Innocent III lasted for 20 years.

During that time, lands and cities of the Counts of Toulouse were ravaged by the Pope's crusaders. Between 200,000 and a million heretics - and others - were killed. The pope raised his crusading army by repeatedly offering orthodox Catholic warriors indulgences and titles to all lands they conquered.

In 1215, Innocent III and the Fourth Council of the Lateran, promulgated "Canon 3 - On Heresy."

"We condemn all heretics. ... The goods of the condemned are to be confiscated ... Those who are only found suspect of heresy are to be struck with the sword of anathema, unless they prove their innocence by an appropriate purgation ... Let such persons be avoided by all until they have made adequate satisfaction. If they persist in the excommunication for a year, they are to be condemned as heretics. Let secular authorities ... be advised ... and if necessary compelled ... to expel from the lands ... all heretics designated by the church in good faith. ... If a temporal lord, required ... by the church, neglects to cleanse his territory of this heretical filth, he shall be [excommunicated] by the metropolitan and other bishops of the province. If he refuses to give satisfaction within a year, this shall be reported to the supreme pontiff [who] may then declare his vassals absolved from their fealty to him and make the land available for occupation by [crusading] Catholics ... Moreover, we determine to subject to excommunication believers who receive, defend or support heretics. If any refuse to avoid such heretics after they have been pointed out by the church, let them be punished with the sentence of excommunication until they make suitable satisfaction. Clerics should not, of course, give the sacraments of the church to such pestilent people nor give them a Christian burial."

Luther was fully aware of the case of John Huss, a priest, who sought to reform the Bohemian church. He espoused the teachings of John Wycliffe. In 1415, he sought to defend his teachings at the Council of Constance.

The church found him guilty of heresy, and directed him burned at the stake. It was against the threat of John Huss' fate that Luther began his reformation efforts. Rome responded with the papal bull, Exsurge Domine, listing 41 errors advanced by Luther.

Error No. 33 states: "It is contrary to the will of the Spirit that heretics be burned." Luther responded by burning the bull.

When Luther failed to recant, the pope issued the bull Decet Romanum Pontificem declaring that Luther had been formally excommunicated. Luther escaped the fate of Huss only because Frederick III, the elector of Saxony confined him at Wartburg Castle.

Europe divided into two camps. Thirty years of religious war followed in central Europe until the opposing sides exhausted themselves. Some eight million died. The war ended Rome's power to enforce orthodoxy, at least in the Protestant states recognized by the Treaty of Westphalia (1648). There, the power of the Inquisition was smashed.

The religious toleration and freedom we have come to know in the U.S. would not have blossomed when and as it did without Martin Luther and the shameful religious wars that followed.

Today western man worships as he pleases. Christians no longer burn each other for heresy. Even if you disagree with Luther's teachings, he deserves credit for risking his life to profess the faith he believed. Our religious freedom did not come cheaply.


Posted: QCOline.com Nov. 5, 2017
Copyright 2017, John Donald O'Shea

Can a Civilized Society Impose Death Penalty?

Do you oppose the death penalty? In all situations> What if accused Las Vegas murderer, Stephen Paddock, had lived? As a juror, what penalty would you impose?

The Washington Post story headlined, "At least 59 killed in Las Vegas shooting rampage, more than 500 others injured," notes:

"Perched in his suite at a high-rise hotel overlooking the Vegas Strip, a 64-year-old retiree with no real criminal history and no known affiliations with terror groups rained bullets down into a crowd at a country music festival Sunday, killing at least 59 people and injuring [five hundred] more in the deadliest mass shooting in modern American history.


"Law enforcement officials said they could not immediately tell what drove Stephen Paddock to fire at thousands of unsuspecting concertgoers from the 32nd floor of the Mandalay Bay ... before killing himself."

Had Paddock not committed suicide, would the death penalty be an appropriate disposition pursuant to his conviction for murdering 59 human beings? The only appropriate disposition?

When our founding fathers wrote our Constitution and added the Bill of Rights, they decided our liberties would be better secured if 12 citizens, not government functionaries, not judges, decided the guilt of defendants charged with murder. And in murder cases, it was juries who decided whether or not to impose the death penalty.

Unless, the defendant waives jury trial, the jury still decides these issues today.

Among issues considered by a jury in whether or not to impose the death penalty are:
Were these murders, premeditated?

Paddock rented an hotel room overlooking the concert venue - an open field with no places to hide. He arrived there several days prior to the murders. He carefully set up. He brought some 23 guns [calibers ranging from .223 to .308]. Some had scopes. One weapon, apparently used in the massacre, was an AK-47-type rifle, with a tripod. Paddock set up cameras to observe the hallway outside his room.

To increase his rate of fire - to mimic a fully automatic illegal weapon - he apparently used "bump stocks." Twelve were found in his room. Have you any doubt whatsoever that these murders were premeditated?
Would the death penalty be "proportionate" to the offense(s)?

When somebody, with premeditation, murders 59 innocent people, is any term in the penitentiary "proportionate?" What penalty other than death even approaches being "proportionate" to 59 premeditated murders?

Would you impose a sentence to encourage Paddock to "rehabilitate" himself?

Paddock was 64. Assuming he's a model prisoner, would you parole him, if your rehabilitation goal is met? When? After 5 years? 10 years ? 15?

You can find the names and ages of Paddock's victims at msn.com/en-us/news/us/here-are-all-the-victims-of-the-las-vegas-shootingar-AAsY6V9

Paddock's victims ranged in age from 20 to 67. They were mothers, fathers, sons, daughters, grandparents and grandchildren. Are 59 concurrent 20-year sentences adequate punishment? 59 concurrent life sentences? Were Paddock to die in prison at age 80, would his 16-year sentence be proportionate punishment for killing people in their 20s and 30s? And are 59 concurrent life sentences any more punitive than a single life sentence?
Then, there is the matter of deterrence.

Would you argue that imposition of the death penalty on one defendant will not deter others from committing similar crimes?

But it is not certain that Paddock would have been absolutely and permanently deterred from ever murdering 60 innocent? Does any executed murderer ever engage in recidivism?

Would you argue, "only God can take a life?" If so, would you have objected to a policeman killing Paddock to terminate his murder spree? If a policeman can kill without trial, why can't society impose a death sentence after considering all issues as fully and fairly as possible? You argue, a policeman acts out of necessity. Why can't a jury find that death is necessary if the sentence is to be proportionate, and the only punishment that can guarantee deterrence?

Due to word limitations, the question of "randomness" must be the subject of a future op-ed.


Posted: QCOline.com October 17, 2017
Copyright 2017, John Donald O'Shea

New Citizens Should Share Benefits, Burdens

Those in favor of a broad amnesty for illegal aliens argue immigrants work, pay taxes and contribute billions to the U.S. economy. Those against amnesty tell us too many immigrants don’t work, live off welfare and are a drain on our nation’s resources. You can go online and find lots of numbers to support either position.

Benjamin Disraeli, one of Britain’s great prime ministers, once said, “There are three kinds of lies: lies, damned lies and statistics.” So, how can the average American citizen determine which set of “statistics” are truthful? Sadly, I’m not sure we can.

Two things are clear, however, to most Americans who take time to look. Many of the illegals work darn hard (that would include serving in the military) and pay federal income and Social Security taxes. Others don’t work and live off welfare.



President Trump has proposed we legally admit immigrants who will work, pay taxes and benefit our country. He would not welcome those who become “public charges.” Speaking recently in Iowa, President Trump said, “The time has come for new immigration rules that say ... those seeking immigration into our country must be able to support themselves financially and should not use welfare for a period of at least five years.”

Fox News added, “Mr. Trump’s proposal would build on the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which allows federal authorities to deport immigrants who become public dependents within five years of their arrival. It would also prevent the admission of people who are likely to become so-called public charges within five years of their arrival.”

Fox points out, “The concept of ‘public charge’ has been part of U.S. immigration law for over a century. It allows the government to bar entry to individuals who are likely to seek public assistance. Trump is expected to propose toughening up the rules regarding ‘public charges’ and ensuring that they are enforced.”

Such was the law when my mother came to this country. Until she married, she worked. She was never a public charge. She never felt the requirement not to be a public charge was onerous or unfair.

But if Mr. Trump is right, then it’s a rational second step to give preferred treatment to illegal immigrants who have continuously worked (including serving in the military) and paid their taxes -- for (perhaps) five consecutive years. I see no serious argument against granting them amnesty and citizenship. Their conduct demonstrates they are the kind of immigrants Mr. Trump says he wants.

But why should we grant amnesty and citizenship to parasites -- people who have illegally entered our country and milk our welfare system? Citizenship is partnership. Citizens share the benefits, but they also need to share the burdens.

As such, I would suggest three rules in reference to “illegal immigrants:


• First: Federal welfare -- whether direct or indirect -- should not be available to any illegal immigrant. The promise of welfare is a magnet that draws illegals across our borders.

• Second: Illegal immigrants who have become public dependents for five years or more should be liable to deportation.

• Third: No illegal immigrants who have accepted federal welfare money should be eligible for citizenship for themselves or any child they have brought across the border, until they have repaid all the federal welfare benefits they have taken, and paid federal income and Social Security taxes for (perhaps) five years.

For the president, there is an obvious deal to be made. In return for his wall to stop this mess from re-occurring, prompt citizenship for all the illegal immigrants here (or in the military) who have paid more in federal income and Social Security taxes than they have drawn in federal welfare benefit for (perhaps) five consecutive years, and who have no felony or crime of violence convictions.

You will notice I have talked only about federal taxes and federal welfare benefits. The federal government knows what federal income taxes and Social Security taxes all of us have paid. It also knows what federal welfare benefits we have been given. The question should be whether federal taxes paid are more or less than welfare benefits granted. If federal taxes paid exceed federal welfare benefits accepted, the numbers fairly suggest that the immigrant’s presence has benefited the nation.

Posted: QCOline.com October 9, 2017
Copyright 2017, John Donald O'Shea

In Praise of Some Old Friends

More than 60 years ago, when I was a fifth-grader, Sister Mary Philomene sent our class to the school library to pick out books to read. In the process of selection, I came across a series of books dealing with American history that have been my lifelong companions: Landmark Books by Random House.

That day, I selected two, "The Monitor and the Merrimac" and "The Explorations of Pere Marquette." I read them, was fascinated by them and looked for more. During the years, I have read "Ben Franklin of Old Philadelphia," "The Barbary Pirates," "The Erie Canal" (one of my favorites), "Peter Stuyvesant of Old New York," "John Paul Jones, Fighting Sailor" and many others. I have re-read a number of them more than once -- three this last week while I was on vacation. I still look for them in resale shops and at rummage sales. I like their 177-page format, their large print, their occasional drawings and the quality of the writing. It moves.

As a boy, I didn't know many of the Landmark selections (and later companion World Landmark selections, a complimentary set dealing with world history) actually were abridged versions of works by prominent authors, including Sterling North, Pearl S. Buck, John Gunther, Quentin Reynolds, Van Wyck Mason, C.S. Forrester, Richard Trevaskis and William L. Shirer.


What I particularly liked about the books, is they seemed to bring to life the great Americans we had met in our history classes. The printed names on the page of the history book became real people, as I came to know the Wright Brothers as they, through trial and error, flew at Kitty Hawk, as Custer met his fate at Little Big Horn and as Lincoln and Douglas debated for a seat in the U.S. Senate. I came to see the men who made our country not merely as references on a printed page but as people who worked and fought for their goals.

Today, the Landmark books are being discarded by libraries. About five years ago, while directing a play at Edison Junior High, I walked into the library and found a half dozen of the series in the "discard pile."

Nevertheless, the series has found great favor with the home-schoolers. It is argued, that were a student to read all 122 books in the series, "he would obtain a better education in U.S. History than 95 percent of students graduating from high school."

Others would disagree, arguing each book deals with only one topic or one person. A good school history book, they correctly point out, does a better job of dealing with trends and causes and effects -- of tying loose ends together. It also deals with a myriad of other incidents and historical personages not touched by the 122 books in the Landmark series.

But to the extent the Landmark books deal with a subject or a person, I think the proponents' argument clearly accurate.


As regards the voyages of Columbus, the landing of the Pilgrims, Paul Revere and the Minutemen, our independence and Constitution, the California Gold Rush, the Pony Express, Lee and Grant at Appomattox, the first trans-continental railroad, the Lewis and Clark Expedition and 112 other topics, I think the claim is clearly true. If our history books dedicate a page to Jimmy Doolittle's attack on Japan or the story of our marines on Guadalcanal, each book in the series devotes about 177 pages.

Both the Landmark and World Landmark series still are available. Oftentimes, you can buy them very reasonably on eBay in bunches or individually.

If you are wondering what prompted this op-ed, it's the razing of our historical statues, the cries to remove the names of Robert E. Lee, Thomas Jefferson and George Washington from the facades of our schools and the demand for removal of certain great books from our schools. (E.g., "Tom Sawyer," "Huckleberry Finn," "To Kill a Mockingbird.")

No rational person could make such a demand after reading and understanding the Landmark books, "Robert E. Lee and the Road of Honor," or "Thomas Jefferson, Father of Democracy."

But then, burning books always has been quicker and easier than reading and understanding them.


Posted: QCOline.com October 2, 2017
Copyright 2017, John Donald O'Shea

The Left's War on the 1st Amendment, Part 2

(Editor's note: This is the last of a two-part series)

Having failed to curtail First Amendment protections by use of government powers and in the courts, the militant radical left (rad-left) now seeks to do it in the streets.

Radical leftist thugs now mob the streets wearing hoods/masks, calling for the death of cops, destroying property of their choice and beating people with whom they disagree.

For years, "Huckleberry Finn" has been on the rad-left's hit list. In December 2016, "To Kill a Mockingbird" was accorded similar honor -- notwithstanding the unequivocal words and actions of Atticus Finch.

On Feb. 1, at Berkeley, to prevent a conservative "nobody" from speaking on campus, about 150 rad-left rioters, including "Antifa" and "By Any Means Necessary" set fires, damaged property, attacked members of the crowd and threw rocks at the police.

Masked Antifa rioters, who claim to be anti-fascists, instead gave every appearance of being 21st century fascists. Claiming to hate the Klan, they adopt the very tactics utilized by the Klan for 100 years.

In April, the New Orleans city council declared statues of Jefferson Davis, P.G.T Beauregard and Robert E. Lee to be "public nuisances" and ordered their removal.

On Aug. 14 at Durham, N.C., rioters pulled down and destroyed the statue of a Confederate soldier.

On Aug. 17, a plaque honoring Confederate soldiers was removed from a cemetery in Madison, Wis.

The same day, Sen. Corey Booker, D-N.J., announced he would introduce a bill to remove all Confederate statues from the U.S. Capitol.

On Aug.18, a statue of former Chief Justice Roger B. Taney was removed from in front of the Annapolis, Md., statehouse. (Taney had authored the Dred Scott opinion).

On Aug. 19, a statue of Robert E. Lee was defaced in front of the Duke University Chapel. The university president then removed the statue to "protect worshippers."

In an Aug. 19 interview with Charlie Rose, Al Sharpton demanded an end to federal funding for maintenance of the Jefferson Memorial. (We are to ignore Jefferson's greatness. All that matters is Jefferson owned slaves!): “You’re asking me to subsidize the insult of my family. ... The public should not be paying to uphold somebody who has had that kind of background ”

Not to be outdone, Angela Rye, Congressional Black Caucus Director, on CNN said, "George Washington was a slaveowner. Whether we think they were protecting American freedom or not, he wasn't protecting my freedom.

"This country was built on ... the raping and the killing of my ancestors. I'm not going to allow it ... it's OK for Robert E. Lee but not George Washington."

On Aug. 21, a 225 year-old Baltimore statue of Christopher Columbus was vandalized. The justification: "Christopher Columbus symbolizes the initial invasion of European capitalism into the Western Hemisphere. Columbus initiated a centuries of wave of terrorism, murder, genocide, rape, slavery, ecological degradation and capitalist exploitation of labor in the Americas."

On Aug. 27, the Orpheum Theatre in Memphis removed "Gone with the Wind" from its lineup, claiming it was racially "insensitive."

Since the 1990 Supreme Court holding in U.S. v. Eichman, flag burning/desecration is a protected form of political speech. The left now wants to extend that holding to smashing statues, burning books and censoring movies. But Eichman had an important caveat -- you can burn your own flag, but burning your neighbor's is criminal damage to property. Worse, its barbarism and fascism.

The rad-left rejects the hallowed First Amendment tenet that their "enlightened" ideas must compete with conservative ideas in the "marketplace of ideas." New vs. old. The left, instead, prefers to suppress and silence all opposition speech. After all, that's what good fascist and communists always do.

Today, the rad-left attacks statues, books and movies because they honor men who held slaves or who fought for the Confederacy. Reminiscent of President Barack Obama's Justice Department in Alvarez, the rad-left believes anything tainted by slavery has no value and hence no First Amendment protection. And worse, anyone who disagrees with their fascist notions is a racist and has no right to honor great, albeit tainted, political figures.

By the same logic, their next step is to trash the U.S. Constitution. Was it not born of a compromise that allowed the slave states to maintain slavery within their borders? Does it not contain a provision to count slaves as "3/5ths" for purposes of apportionment?

Provision for the return of fugitive slaves?


Posted: QCOline.com September 18, 2017
Copyright 2017, John Donald O'Shea

The Left's War on the First Amendment - Part I

The Left's War on the 1st Amendment, Part 1

During President Obama's eight years, his left-leaning administration made at least three serious efforts to undermine the First Amendment's guarantee of free speech.

Two were unsuccessful. The third, for a critical time, succeeded.

In January 2008, Citizens United released a 90-minute documentary, "Hillary: The Movie," about

Mrs. Clinton, who then was a candidate in the 2008 Democrat Presidential primary. The film featured interviews -- mostly critical -- with political commentators and others.

It was released in theaters and on DVD, but Citizens United wanted to increase distribution by making it available through video on-demand within 30 days of the 2008 primary elections. Fearing it would be prosecuted for violation of the Bipartisan Campaign Reform Act of 2002, it sued to have the act declared unconstitutional.

In the 2010 Citizens United decision, Justice Anthony Kennedy, for the majority, wrote, "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."

In Citizens United, the court overruled or distinguished its earlier decision which prohibited "corporations from using their general treasury funds to make independent expenditures for speech defined as an 'electioneering communication' or for speech expressly advocating the election or defeat of a candidate."

The BCRA had allowed such speech only out of "special funds" raised by "political action committees," and not within 30 days before a primary election.

President Obama denounced Citizens United, asserting that it:

A. Allowed corporations to make unlimited donations to candidates or political parties, and

B. Allowed foreign corporations the same rights as domestic corporations.

Mr. Obama knew better. 

In the court's own words, the only issue before the court was whether a corporation could use its "general treasury funds to make independent expenditures for speech defined as an 'electioneering communication' or for speech expressly advocating the election or defeat of a candidate."

And as regards "foreign corporations," the court specifically wrote, "We need not reach the question whether the government has a compelling interest in preventing foreign individuals or associations from influencing our Nation's political process."

In Citizens United, none of the parties were "foreign corporations."

Two years later, in 2012, in U.S. v. Alvarez , the Obama administration prosecuted a liar for falsely saying, "I was awarded the Congressional Medal of Honor. I got wounded many times." The government made no claim the liar lied for material gain, or to harm any person. The Obama administration prosecuted the liar for simply lying -- nothing more.

President Obama's Justice Department argued "that false statements have no value and hence no First Amendment protection." The court disagreed:

"Were the court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition.

"Here the lie was made in a public meeting, but the statute would apply with equal force to personal, whispered conversations within a home.

Had the court upheld the Obama administration's contention, Congress would have been green-lighted to criminalize parental lies to their children -- in the privacy of their own home: "Yes, Virginia, there is a Santa Claus," could carry a fine or jail time.

Then, of course, the third effort was the Obama administration's misuse of the IRS was to destroy the political effectiveness of the tea party groups. This was done by slow-walking or denying the requests of the groups for 501(c)(3) tax exempt status. Without the ability to receive tax-free donations, and without their donors receiving deductions for their donations, some 400 conservative organizations, representing tens of thousands of Americans, were gagged for the 2010 and 2012 elections.

In the words of Chief Justice John Marshall, "The power to tax is the power to destroy." The refusal to grant the tea party groups tax-free status also meant they had to pay taxes on any moneys they raised. The tactic worked. Tea Party groups were a non-factor in the 2012 presidential election.

President Trump's 2016 electoral victory removed power from the hands of the Democrats power to use the machinery of government to limit the speech of the conservative opposition. Now the battle to over free speech has moved from the White House, the IRS and the courts to the streets.

Posted: QCOline.com September 13, 2017
Copyright 2017, John Donald O'Shea

This Is What Passes for Leadership in Illinois?

On Friday, August 11, 2017, Bret Baier - Fox News - attempted to substantively interview Illinois Governor Bruce Rauner. The "Gov."made sure it didn't happen.

By interview's end, all I could think of was Charles Durning, who played the "Governor" in the "Best Little Whorehouse in Texas" singing "The Sidestep!"

                      "Fellow Texans, I'm proudly standing her to humbly say ...
                       I'm for progress and the flag ....
                       I'm for goodness and for profit and for living clean ...

                       "Ooo, I love to dance the little sidestep
                        Now they see me, now they don't, I've come and gone ...
                        I love to cut a wide swath ... and lead the people on."


BAIER: Chicago’s a sanctuary city. Who are you with on this one, President Trump or Mayor Emanuel?

RAUNER: Well, I can tell you this .. one in seven people in Illinois are immigrants. So this is a very, very big issue. ... Our system is broken. We need ... reform. ... thoughtful rational discussion ....

Did the Governor answer? Or "sidestep?"

BAIER: So why shouldn’t Chicago follow federal law?

RAUNER: Well, I tell you this, the system is broken.

Answer? Or sidestep?

BAIER: You have SB-31 on your desk. According to the Chicago Tribute, the bill would prohibit police from searching, arresting, or detaining a person because of their immigration status, absent a federal criminal warrant. It would also create so-called safe zones in state-funded schools, [and] healthcare centers, ... and block state and local enforcement agencies from creating registries based ... national origin. Are you going to sign that bill?

RAUNER: So, our staff is evaluating that bill right now. ... We are meeting with law enforcement agencies and ... leaders in the state to get their views on it.

BAIER: There are some families who say they’ve lost loved ones because of sanctuary policy and they’re trying to meet with you. Do you want to hear that point of view?

RAUNER: I want to hear everybody’s point of view. ... Our immigration system is broken and we need to have a system that keeps the people of Illinois safe ....

BAIER: ... Do you agree with the president or not that sanctuary cities are a problem – yes or no?

RAUNER: Well, I’d tell you this; what I’d say is immigration in America is broken.

Answers? Or sidesteps?

Baier then replayed an interview with Tom Homan, Acting ICE Director.

HOMAN: Sanctuary cities are a criminal’s biggest friend. ... Sanctuary cities not only endanger public safety, they endanger my law enforcement officers.

BAIER: So do you agree with him?

RAUNER: ... If we have criminals who are in this country and committing crimes, we’ve got to get them out and we’ve got to get them prosecuted. ... We’ve got to keep the people if Illinois safe....

So, did Rauner ever answer any of Baier's questions? Who did Rauner say he was with? President Trump or Mayor Emmanuel? Could he even agree that "Chicago should follow federal law!"


Wearying of Rauner's Immigration "sidestep," Bret Baier looked for a straight answer on "Obamacare."

BAIER: President Trump wants to repeal and replace Obamacare, do you agree?

RAUNER: I can tell you so much of our Affordable Healthcare Act is broken, it needs to be repaired. I’ve expressed concerns about what it might do to some of our most vulnerable residents in Illinois ... The insurance exchanges ... are they broken. Look at the rates ... Insurance companies that are dropping out, we need some big changes in the system.

So did the Governor answer any question or reprise the "Sidestep?" Does he support Mr. Trump's call to "repeal and replace?" What specifically did Rauner mean by "repair?"

BAIER: Is President Trump a good president?

RAUNER: I could tell you this, my job as Governor is to work with every President ....

"Now they see me, now they don't, I've come and gone ...."

Rauner, however, was delighted to take partisan shots at Speaker Madigan has "been in office 35 years," during which time Illinois has "had massive job losses, deficits, biggest unfunded pension liabilities in America, ramped corruption (inaudible) patronage, and that Madigan's recent Income Tax hike "will not fix anything."


To be clear, Madigan has been an utter disaster for Illinois. Now after, listening to Gov. Rauner, I am nauseated - nauseated by a smug, pompous politician who thinks it's clever to "sidestep" the interviewer's question. The voters deserve straight answers. Saying it's "broken" repeatedly, isn't a straight answer. Madigan? Rainer? Phooey! A plague on both their houses!

And if Gov. Rauner thinks he get re-elected by pandering to liberals and eschewing his base, he's nuts. How'd it work for Sen. Kirk?


Posted: QCOline.com September 5, 2017
Copyright 2017, John Donald O'Shea

Why We Can't Prosecute a Sitting President

Harvard law professor emeritus Alan Dershowitz has told Fox News that Justice Department memos state that a sitting president cannot be indicted, prosecuted or tried, without first having been impeached and removed from office. I agree.

The president of the United States is elected by the people (their "electors") in all 50 states.

Three articles of the U.S. Constitution deal with removal from office or impeachment:

Article 1 provides:

-- "The House of Representatives ... shall have the sole power of impeachment."

-- "The Senate shall have the sole power to try all impeachments.."

-- "Judgement in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgement and punishment, according to law."

Professor Dershowitz would read that as saying "but the party once convicted by the Senate shall nevertheless be liable and subject to indictment, trial, judgement and punishment." For the professor, there can be no prosecution, or punishment of a sitting president until after his removal from office pursuant to the Senate's impeachment conviction.

The reason for this is patently obvious.

If a sitting president can be indicted and tried by a special prosecutor, he could just as easily be indicted, and tried by any or all of the 93 U.S. Attorneys. Worse, he could be indicted, and tried by the hundreds of county prosecutors of every state in the union.

The danger is obvious. Chaos. If the president can be tried, convicted and imprisoned while in office, is he going to serve the remainder of his term while confined in a penitentiary? Is Joliet State Prison going to be the Midwestern White House? What if he appeals and wins?

If the president can be prosecuted while in office, any one prosecutor -- federal or state -- could nullify or attempt to nullify the will of the voters (and their electors) in the 50 states. What if the Cook County state's attorney charged the president with "official misconduct" for usurping Congressional power to declare war by taking out an Islamic State terrorist training camp in Libya without specific prior Congressional approval?


Would the president have to put all other issues on his desk on the back burner to defend himself in Cook County criminal court? Can 12 jurors nullify the results of a presidential election?

It is not difficult to imagine a concerted effort by 10 opposition prosecutors, acting as Lilliputians to tie down President Gulliver -- to divert his attention from the great matters of state and duties of his office, to the tawdry matter of defending himself against sundry official misconduct charges. If you think the efforts of the opposition party in Congress -- Republican or Democrat -- to obstruct the sitting president's agenda are hurting the country, imagine the chaos that opposition prosecutors could do if they had power to indict, try and imprison a sitting president.

The argument has been made that during the trial of a sitting president, the vice president and a majority of the principal officers of the executive departments could make a written declaration that the president is "unable to discharge the powers and duties of his office," and that the vice president could then immediately assume the powers and duties of the presidency pursuant to the 25th Amendment.

The president could, however, make his counter-declaration that no inability exists. If he did, he would resume office unless two-thirds of the members of both Houses of Congress found that he was unable to discharge his duties.

The 25th Amendment was added to the Constitution (1967), not to allow members of the president's cabinet to suspend a physically and mentally competent president from office during a criminal trial, but rather to do so if the president should become physically or mentally disabled. It was passed in the wake of the 1963 assassination of President Kennedy. What if the bullet, rather than killing the president, had left him alive but unable to "discharge the powers and duties of his office?"

The sole remedy for high crimes and misdemeanors is impeachment -- by the elected representatives of the people from all 50 states.

Posted: QCOline.com August 22, 2017
Copyright 2017, John Donald O'Shea

Ever Hear of Tenure of Office Act of 1867?

What if President Trump should decide special prosecutor Robert Mueller is abusing his authority? That Mueller’s Russian meddling investigation is hindering the president’s duty to faithfully execute all the other laws? Can President Trump “fire” or remove him?

The simple answer is, “Yes.”

Article II of the U.S. Constitution gives the president power to appoint the “principal officers” of the U.S., subject to the advice and consent of the Senate. It is silent, however, as to the president’s power to remove those principal officers.


What if Congress were to pass a law providing that Mueller cannot be removed without the advice and consent of the Senate? Or without the approval of the courts?

If the president has the power of appointment, the president has the absolute constitutional power to remove that executive branch officer without the consent of the Senate, even though the officer’s appointment was subject to Senate approval.

In 1926, in the case of Myers v. U.S., the U.S. Supreme Court decided that issue.

Frank S. Myers was a first-class postmaster, appointed under an act of Congress which provided “postmasters of the first, second and third classes shall be appointed and may be removed by the president by and with the advice and consent of the Senate ...”

President Wilson dismissed Myers from his post. The Senate did not consent to the president’s removal. Myers sued.

The court framed the issue as follows:

“This case presents the question whether, under the Constitution, the president has the exclusive power of removing executive officers of the United States whom he has appointed by and with the advice and consent of the Senate.”

The court engaged in an exhaustive historical examination of the issue that included analysis of legislation, beginning with the 1789 Bill to Establish a Department of Foreign Affairs, considered by the First Congress, which would have allowed the president unfettered discretion to remove any officer conducting the foreign affairs of the nation.

It concluded with examination of the 1867 Tenure of Office Act which barred President Andrew Johnson from removing Secretary of War Edward Stanton without Senate consent. (Stanton refused to support President Andrew Johnson’s lenient plan to reconstruct the South, and instead supported the rigorous congressional Reconstruction of the radical Republicans).

The court concluded:

“When, on the merits, we find our conclusion strongly favoring the view which prevailed in the First Congress, we have no hesitation in holding that conclusion to be correct, and it therefore follows that the Tenure of Office Act of 1867, insofar as it attempted to prevent the president from removing an executive officer who had been appointed by him by and with the advice and consent of the Senate, was invalid, and that subsequent legislation of the same effect was equally so.


“For the reasons given, we must therefore hold that the provision of the law of 1867, by which the unrestricted power of removal of first-class postmasters is denied to the president, is in violation of the Constitution, and invalid.”

The court’s holding was based squarely on the 1789 remarks of James Madison and his supporters during the debate on the Bill to Establish a Department of Foreign Affairs.

Mr. Madison, in the House discussion, dwelt at length upon the necessity for construing Article II to give the president the sole power of removal in his responsibility for the conduct of the executive branch, and re-enforced this by emphasizing his duty expressly declared in the third section of the article to “take care that the laws be faithfully executed.”

According to Madison, “The vesting of the executive power in the president was essentially a grant of the power to execute the laws. But the president, alone and unaided, could not execute the laws. He must execute them by the assistance of subordinates.

“As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that, as part of his executive power, he should select those who were to act for him under his direction in the execution of the laws.

“The further implication must be, in the absence of any express limitation respecting removals, that, as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible.”

Posted: QCOline.com August 10, 2017
Copyright 2017, John Donald O'Shea

Must Guards Turn Other Cheek to Spitting Inmates?

In Harper Lee’s novel, “To Kill a Mockingbird,” Bob Ewell spits in Atticus Finch’s face.





Finch had acted as court appointed defense counsel for Tom Robinson, and had defended him against a perjured rape charge leveled by Ewell and his daughter.

Finch replied, “I’m too old to fight.”


But what are real-life prison guards at Harrisburg Juvenile Detention facility supposed to do when incarcerated delinquents who have turned 18 (adult) spit in their faces?

There was a time when if a convicted juvenile delinquent spat in a guard’s face, the spitter found himself in solitary confinement for a period deemed sufficient by the prison authorities to deter such misconduct. Then the American Civil Liberties Union and the federal court got involved, and the use of solitary was severely curtailed by the federal judge’s “Remedial Plan.”

As summarized in the ACLU’s most recent pleading, the plan “specified limited purposes for which [solitary] confinement may be used behavior management [not to exceed 24 hours] ... and specifically provides that ‘All other forms of confinement shall be prohibited, including, but not limited to for purposes of disciplining or punishing a youth.”

The ACLU now alleges that those delinquents who have turned 18 (become “adults”), are now being prosecuted for aggravated battery, and upon conviction sentenced to adult prison or probation -- spitting on someone is a battery, and when that someone is a correctional officer, it becomes aggravated battery. The ACLU argues “this kind of excessive punishment is ruinous for young lives.”

But if you are 18, and on the street, and you spit in a cop’s face, you’ll certainly be charged with battery. And if you have a prior significant record, either as a juvenile or an adult, you may be charged with aggravated battery and face adult prison. So why should an incarcerated 18-year-old juvenile be treated more favorably than another 18-year-old on the street and not incarcerated, who spits in the face of a policeman?

Do you really think judges send delinquents to Harrisburg for “insignificant” first offenses? Probation is almost always tried first, except for serious or violent offenses.

But assuming for purposes of argument that “rehabilitation” is the only purpose of a delinquency proceeding, that is not true in an adult prosecution. Therein, while rehabilitation remains a goal of sentencing, it must be balanced against the need to punish, and deter the offender and others, and protect the public.

Yet, in its pleading, the ACLU pooh poohs the Harrisburg staff’s concerns:

“The staff are concerned that there are fewer consequences for serious misconduct and they express the questionable opinion that the threat of being placed in [solitary] confinement is a valuable deterrent to aggressive and assaultive youth.”

OK. So, what other “meaningful alternative” is there? What if each of the roughly 126 delinquents at the Harrisburg spits in the face of every guard who comes within range? What if just five do? What if one or more of the spitters carry AIDS or some other infectious disease? What if 24-hour detention is inadequate to stop the spitting?

If you can’t put the spitters in solitary, and/or prosecute those who have reached the age of 18 as adults for aggravated battery, what are the guards supposed to do? Wear hazmat suits?

I have long believed, that except for the most serious abuses, judges are not competent to run prisons. Federal judges have no jurisdiction to prosecute inmates for state law violations, such as disorderly conduct, battery or aggravated battery. Their injunctions typically only tell the prison authorities (not the inmates) what they can or cannot do.

If you enjoin the use of solitary confinement, and adult prosecutions, what’s left?

Can a guard whack a spitter with a billy club? Perhaps up to three times, but not too hard? If solitary for more than 24 hours is “cruel and unusual punishment,” why wouldn’t billy clubbing be deemed worse? The pillory have been verboten since colonial times. Is the judge going to approve the guards using self defense? Can they spit back? Punch the spitter in the nose? Or are they expected to imitate Atticus Finch?

What would the ACLU attorneys do if every time one of them visited a Harrisburg inmate, the inmate spat in his face? What would the federal judge do if he became the target?

Rehabilitation of juvenile inmates is a worthy goal. But rehabilitation requires the cooperation of the juvenile. Spitting on correction officers hardly seems consistent with the juvenile seriously working to “rehabilitate” himself.

Posted: QCOline.com August 1, 2017
Copyright 2017, John Donald O'Shea

Free Speech and Free Counter-speech. Our First Amendment Rights

When the Supreme Court in Citizens United held that all corporations -- profit, non-profit and ecclesiastical -- had the First Amendment right to use their corporate funds to voice and "broadcast" their political and economic ideas (as The New York Times or The Washington Post do on a daily basis), the court was vilified.

The essence of Citizens United was that your right to "speak" necessarily assumes that someone who disagrees with you has the right to engage in "counter-speech."

When I was a law student, one of my professors said, "A nation teaming with a myriad of competing entities, large and small, each espousing and pursuing its own competing interest, must of necessity remain free and democratic. The totalitarian state can brook no dissenting entities."

His remark was reminiscent of what the great Justice Oliver Holmes said in Abrams v. U.S. "Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition.

"To allow opposition by speech seems to indicate that you think the speech impotent …

"But when men have realized that time has upset many fighting faiths, they may come to believe ... that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market ….

"That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.

"Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country."

So what is happening in our modern "free marketplace of ideas?"

When I was a boy, living in a Chicago suburb, Chicago had four major newspapers: the Chicago Tribune, the Sun Times, the Daily News and the Herald American. They spoke with very different voices. The Tribune was staunchly conservative. The Sun Times was pro-Democrat, but independent of Chicago political control. The Daily News was scholarly and literary. The Herald American was something right out of Ben Hecht's play, the"Front Page."

Today, only the Tribune and Sun Times survive.

Running parallel to the demise of many newspapers is the phenomenon of merger. In June 2000, the Tribune acquired the Los Angeles-based Times Mirror Company.

That merger added seven daily newspapers to the Tribune's chain, including the Los Angeles Times, the Baltimore Sun, the Hartford Courant, and the Long Island-based Newday. Additionally, the Tribune acquired TV stations in New York and LA to go along with WGN-Chicago.

As each independent newspaper, TV station or radio station died off, America lost one more independent purveyor of ideas. As media holding companies gobble up small media companies, "thought monopoly" tends to replace diverse and independent thought.

But what should be more worrisome is the emergence of the intolerant tyranny of "political correctness." Disfavored speakers are shouted down so their voices can't be heard. Riot, as at Berkeley, becomes the left's weapon of choice to suppress disfavored speech. The infallible apostles of the religion of "clean energy," hold that "error has no rights," and that any politician or corporation espousing contrary "heretical" views must be silenced -- denied any right of "counter-speech." What other way of thinking can justify the attempted assassination of Rep. Steve Scalise and his fellow baseball-practicing Republican Congressmen because their politics was objectionable to the shooter?

When I was a boy, that's exactly the way things were in the USSR. All newspapers and media were a monopoly of the Communist Party and the Soviet State. All Soviet "truth" came from Pravda, or other state-controlled media. There was no marketplace of ideas.

Dissent was punishable with a one-way ticket to Siberia. Ancient history? How is counter speech being tolerated in Venezuela today?

The choice is yours: a free marketplace of ideas, or totalitarianism.

Posted: QCOline.com July 16, 2017
Copyright 2017, John Donald O'Shea

When First Amendment Prohibitions and Rights Collide

                       “Congress shall make no law respecting an establishment of religion, or prohibiting the 

                       free exercise thereof.” -- 1st Amendment, U.S. Constitution

In June, the U.S. Supreme Court, in Trinity Lutheran Church of Columbia, Inc. v. Comer, decided a major 1st Amendment case involving both the establishment of religion and the free exercise of religion clauses of the 1st Amendment.

So what happens when a state's effort to avoid establishing a religion collides with a church's free exercise of its religion?

The court summarized the facts:

"The Missouri Department of Natural Resources offers state grants to help public and private schools, nonprofit daycare centers, and other nonprofit entities purchase rubber playground surfaces made from recycled tires.

"Trinity Lutheran applied for such a grant for its preschool and daycare center.

"The ... Center is ... open throughout the year to serve working families. It admits students of any religion. Enrollment stands at about 90 children, ranging from age two to five.

"... it would have received one, but for the fact that Trinity Lutheran is a church.

"The Department had a policy of categorically disqualifying churches and other religious organizations from receiving grants under its playground resurfacing program.

"The Department ultimately awarded 14 grants in 2012. Because the Center was operated by Trinity Lutheran Church, it was denied a grant."

The Court then set out the issue:

"The question presented is whether the Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment.

Trinity Lutheran sued alleging that the department’s failure to approve the venter’s application, pursuant to its policy of denying grants to religiously affiliated applicants, violates the free exercise clause of the 1st Amendment. The lower courts held for the department. The Supreme Court reversed, saying:

"The Free Exercise Clause 'protect[s] religious observers against unequal treatment' and subjects to the strictest scrutiny, laws that target the religious for 'special disabilities' based on their 'religious status.'

"... this Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest 'of the highest order.'

"Consequently, [a state] cannot exclude individual Catholics, Lutherans, Mohammedans ... or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.

"A law, we said, may not discriminate against 'some or all religious beliefs.' Nor may a law regulate or outlaw conduct because it is religiously motivated. ...

"The Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character."


The Missouri Department contended that merely declining to extend funds to Trinity Lutheran does not prohibit the church from engaging in any religious conduct or otherwise exercising its religious rights.

The court answered:

"It is true the Department has not criminalized the way Trinity Lutheran worships or told the Church that it cannot subscribe to a certain view of the Gospel. But, ... the Free Exercise Clause protects against 'indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.'

"The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church -- solely because it is a church -- to compete with secular organizations for a grant. ... The 'injury in fact' is the inability to compete on an equal footing in the bidding process, not the loss of a contract).

"In this case, there is no dispute that Trinity Lutheran is put to the choice between being a church and receiving a government benefit. The rule is simple: No churches need apply."

Missouri argued its "compelling interest" was its "policy preference" for "skating" as far as possible from any possible "establishment of religion."

The court responded:

“The state interest asserted here -- in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution -- is limited by the Free Exercise Clause.”

So the bottom line is this: If the state is handing out balls and bats and/or playground equipment to not-for-profits, if you are a church, get your application in. They can't deny your request simply because your program is church-affiliated. Caveat: establishment of religion precedents would allow the state to refuse to fund a course of study designed to make the applicant a priest or a minister.

Posted: QCOline.com July 9, 2017
Copyright 2017, John Donald O'Shea

US Needs One Immigration Policy, Not 700

"The Congress shall have power ... to establish a uniform rule of naturalization ... throughout the United States." -- U.S. Constitution, Article 1.

The Appellate Courts of the 4th and 9th circuits had affirmed most of the Preliminary Injunctive Relief granted against President Trump's Executive Order No 2 by lower district courts. The U.S. Supreme Court has now unanimously stayed those appellate court orders -- except as to those "foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States." (i.e., "the exception")

The court has set hearing on the merits of all issues of the consolidated cases for October 2017.


Were I writing the President's Supreme Court brief on the main issue (note: not on "the exception"], appealing from the 9th Circuit's Immigration rulings, my brief would go something like this:

The U.S. Supreme Court, in Galvan v. Press, stated that under Article I of the Constitution, the power to make immigration laws “is entrusted exclusively to Congress.”

In Fiallo v. Bell, the Supreme Court stated, "Over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens. ... The conditions of entry for every alien, the particular classes of aliens that shall be denied entry altogether, the basis for determining such classification ... have been recognized as matters solely for the responsibility of the Congress.”

So, what if Congress, in an exercise of exclusive power to make immigration laws, were to make the following hypothetical findings and law?

"The unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States and directs that the entry of nationals from those designated countries be barred for 90 days."

Would the 9th Circuit Court of Appeals, or any other federal court have power to enjoin that exercise of congressional power?

What is the meaning of the word "exclusive?" Does Congress have "exclusive" power, if a court can enjoin exercise of that power?

If the power to make immigration laws “is entrusted exclusively to Congress,” and is "solely the responsibility of the Congress," that power is neither "exclusive" or "sole" if any court can bar Congress from exercising that power.

But what if Congress delegates its power to control immigration to the president -- the chief executive? Indeed, in the Immigration and Naturalization Act of 1952, Section 212(f), that is precisely what Congress did.

"Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."

In writing that law, Congress exercised its "EXCLUSIVE" power over immigration. It delegated its "exclusive" power to make "findings" [president finds] to the president. It also delegated to the president, its "exclusive" power to "deem what is appropriate" [he "may deem to be appropriate"].


So, if the president "deems it appropriate" to bar entry by nationals from six countries where Muslims are slaughtering Muslims for 90 days because he fears that at least some of those immigrants or refugees will bring their "holy wars" here, and that that would be detrimental to our security, can any court second-guess him? Make its own determination of what is detrimental? What vetting is appropriate and required for our national security?

Under Section 212(f), the president alone, as chief executive, has been designated by Congress as Congress' agent. Pursuant to that delegation, President Trump has made his executive order.

(The "hypothetical legislation" set out above is a verbatim excerpt lifted from President Trump's Revised Immigration Executive Order, EO No. 2.)

The main question which the Supreme Court will decide in October is who decides whether the president's finding is legally sufficient? Who decides whether immigration from a particular country will be detrimental to the U.S.? The president, or 700 federal court judges? Will we have one immigration policy, or 700?

If you think the latter, what competence does any judge have to manage immigration?

National security? The answer is obvious: NONE.

Posted: QCOline.com July 3, 2017
Copyright 2017, John Donald O'Shea

Legitimate Investigation or Boodless Coup?

"I am being investigated for firing the FBI director by the man who told me to fire the FBI director?" -- President Trump, June 1.

In my May 17 op-ed, I detailed deputy attorney general Rod Rosenstein's recommendations to the attorney general suggesting FBI Director James Comey be fired.

"Over the past year, however, the FBI's reputation and credibility have suffered substantial damage, and it has affected the entire Department of Justice.

"I cannot defend the Director's (Comey's) handling of the conclusion of the investigation of Secretary (Hillary) Clinton's emails, and I do not understand his refusal to accept the nearly universal judgment that he was mistaken.

"The way the Director handled the conclusion of the email investigation was wrong. As a result, the FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them.

"Having refused to admit his errors, the Director cannot be expected to implement the necessary corrective actions."

Now on June 14, the Trump-hating Washington Post writes, "Special counsel is investigating Trump for possible obstruction of justice, [unnamed leaking] officials say."

Now, let's look at the timeline.

On February 14, at a private White House meeting, the president said to Director Comey, "I hope you can see your way clear ... to letting Flynn go. ... He is a good guy."

From February 14 until June 8, Comey made no complaint that the president attempted to "pressure him for any inappropriate reason."

On May 3, Comey testified under oath that no superior had tried to shut down the FBI's Russian meddling investigation.

"Not in my experience. ... it would be a big deal to tell the FBI to stop doing something ... without an appropriate purpose. ... It’s not happened in my experience.”

On May 9, Rosenstein sent his letter to the attorney general suggesting Comey be replaced to "restore Public Confidence in the FBI."

On May 9, President Trump fired Comey, saying he acted at the suggestion of D.A.G. Rosenstein.

Then, on May 16, The New York Times wrote, "Comey Memo Says Trump Asked Him to End Flynn Investigation."

The same day, deputy attorney general Rosenstein appoints former FBI Director Robert Mueller as special counsel to take over the investigation into Russian meddling.

On June 8, Comey swore before the Senate Intelligence Committee that the president said, "I hope you can see your way clear ... to letting Flynn go. He is a good guy." Then, for the first time, Comey said he felt the president WAS trying to pressure him. Comey, added however, that President Trump did NOT ask him to drop the FBI's broader investigation into Russia meddling in the 2016 election.

Comey also claimed the "President lied about why he fired me -- saying the FBI was in disarray and that it was poorly led." (Sour grapes? See Rosenstein's reason for firing Comey.)

Something very strange is going on here.

1. After his February 14 meeting with the president, Comey made no complaint of "inappropriate pressure." On May 3, before a Senate Committee, he told Sen. Mazie Hirono that "inappropriate pressure" has "not happened in his experience." Then on June 8, Comey, after being fired, flip-flops, claiming maybe he was pressured after all.

2. Next, on May 9, Rosenstein suggests Comey be replaced. President Trump then fires Comey. A week later, after Comey leaks his memo re the February 14 meeting --- which as paraphrased by the Times is contrary to Comey's May 3 sworn testimony -- Rosenstein abruptly appoints former FBI director Mueller special counsel to handle the "Russian Investigation."

3. Mueller and Comey are close friends, yet rather than recusing himself, Mueller expands the investigation to inquire if his buddy Comey was fired for "inappropriate reasons." Did Mueller's "expansion" create ethical problems? "No DOJ employee may participate in a criminal investigation or prosecution if he has a personal or political relationship with any person ... substantially involved in the conduct that is the subject of the investigation or prosecution, or who would be directly affected by the outcome."

4. Now CNN writes, "Three (of the 5 known) members of Mueller's team have donated (thousands of dollars) to Democrats." A fourth, Aaron Zebley, once represented former Hillary Clinton aide Justin Cooper, who helped manage her private email server.

So, are we watching the beginnings of a bloodless coup d'etat? Pro-Clinton lawyers investigating President Trump?

What if President Obama were still president? What if to investigate him, Rush Limbaugh's good buddy was named special counsel? What if he appointed three major GOP donors as his assistant prosecutors? What happened when a conservative recently tried to speak at Berkeley?


Posted: QCOline.com June 22, 2017
Copyright 2017, John Donald O'Shea