On This Point, President Buchanan Was Right

What happens when the American people reject election results? Defy a Supreme Court holding? President James Buchanan, our vilified 15th president, had strong views on those questions.

Sen. Stephen A. Douglas, in an attempt to save the Union, engineered passage of the Kansas-Nebraska Act of 1854. That law included this provision:

"The true intent and meaning of this Act (is) not to legislate slavery into any Territory or State, nor to exclude it therefrom; but to leave to the people thereof free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States."



In January 1857, the Supreme Court decided the Dred Scott case, holding that the Constitution left the question of slavery to the states. It further held that the Constitution gave Congress no power over slavery (only a duty to assist returning fugitive slaves). Additionally, it held that as Congress had no power over slavery, it could not "delegate" a power to the territories, which it didn't have. Perhaps most importantly, the court held that a slave was "property," and that under the Fifth Amendment's "due process" clause, "no person could be deprived of his ... property, without due process of law."

After the Dred Scott decision, the Douglas Democrats persistently denounced President Buchanan for adhering to the Supreme Court's Dred Scott decision.

They accused the president of "proving faithless to the Cincinnati Platform, which he had accepted, and on which he was elected."

President Buchanan's position was that even if the Cincinnati Platform had affirmed, as the Douglas Democrats insisted, the right of a territory to approve or reject slavery therein pursuant to Congressional authorization, that in the face of an unequivocal contrary Supreme Court decision, it was the President 's duty to act in adherence to that Supreme Court decision, rather than a party platform. In Mr. Buchanan's words,

"He could not hesitate in the choice (between adhering to the party platform, or to the law of the land as pronounced by the Supreme Court) under his oath [to] faithfully and to the best of his ability to 'preserve, protect and defend the Constitution of the United States.' Sad must be the condition of any country where an appeal can be taken from judicial decisions to excited popular elections! ... When [the law] is disregarded and defied by excited and exasperated popular majorities, anarchy and confusion must be the inevitable consequence. Public and private rights are sacrificed to the madness of the hour. ... To avoid such evils, history has taught us that the people will at last seek refuge in the arms of despotism. Let all free governments in the future take warning that the late disastrous civil war, unjustifiable as it was, would most probably never existed had not the American people disobeyed and resisted the Constitution of the country as expounded by the tribunal which they themselves had created for this express purpose."

Most modern legal scholars believe Dred Scott was wrongfully decided, relying on the dissenting opinion therein of Justice Benjamin Robbins Curtis.

Chief Justice Roger Taney, for the majority, had written that Negroes could not be U.S. citizens, and therefore could not sue a citizen of another state in Federal Court ("diversity of citizenship jurisdiction"). Curtis replied that Negroes were considered citizens in most of the northern states; they thus could sue a citizen of another state in Federal Court.


Taney wrote Congress had no power over slavery in the territories. Curtis responded that for 70 years, that power had been universally acknowledged by every branch of government.

Taney wrote that slaves were "property," protected by "due process." Curtis replied that - since Magna Carta (1215) -- the due process clause meant that no man could be executed, imprisoned or fined, except in accordance with the laws of the land.

Candidate Abraham Lincoln later made the moral argument slavery is immoral, and "nobody has a right to do a wrong."

At least in one respect, however, President Buchanan was right. Americans have every right to peacefully express disagreement with election results, or high court decisions.

But when Supreme Court holdings and/or election results are violently "defied by excited and exasperated popular majorities, anarchy and confusion must be the inevitable consequence."


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

Trump and the Ninth Circuit - Both Partially Right; Both Partially Wrong

On Jan. 27, President Trump issued an order “Protecting the Nation From Foreign Terrorist Entry Into the United States.” The federal district court enjoined enforcement of portions of that executive order. The Ninth Circuit Court of Appeals refused to keep the district court's ruling.

Who's right? As to resident aliens, the Ninth Circuit is right; the president is wrong. As to non-resident aliens seeking admission, the Ninth Circuit is wrong; the president is right.

The order cites the 9/11 terrorist attacks, and that “numerous foreign-born individuals have subsequently been convicted or implicated in terrorism-related crimes.” It declares that “the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.” It also finds “deteriorating conditions in certain countries due to war .. .and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. It finds the U.S. must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.”



Congress has specifically granted to the president powers relative to inadmissible aliens: "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 nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."

Trump's order was promulgated pursuant to Congress' unambiguous grant of authority and he acted with all the president's Article II powers together with Congress' Article I immigration powers.

The limits of presidential power were best enunciated in Youngstown Sheet & Tube Co. v. Sawyer. There, President Truman, without Congressional authorization, seized the steel mills to prevent strikes from impeding the government's efforts to prosecute the Korean War.

President Trump here, on the other hand, had full Congressional authorization. In his concurrence with that 1952 opinion, Justice Robert H. Jackson wrote, "When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.

"In these circumstances, and in these only, may he be said ... to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it."


So on what basis did the Ninth Circuit enjoin enforcement of Trump's order? The Due Process clause of the 5th Amendment, which prohibits government from depriving individuals of their “life, liberty, or property, without due process of law.

In the words of the Ninth Circuit: "The Executive Order makes several changes to the policies ... by which non-citizens may enter the United States. ... First, section 3(c) of the Executive Order suspends for 90 days the entry of aliens from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. … Second, section 5(a) of the Executive Order suspends for 120 days the United States Refugee Admissions Program. .... Upon resumption of the refugee program, section 5(b) of the Executive Order directs the Secretary of State to prioritize refugee claims based on religious persecution where a refugee’s religion is the minority religion in the country of his or her nationality. ... Third, section 5(c) of the Executive Order suspends indefinitely the entry of all Syrian refugees."

The district court, the Ninth Circuit said, had "enjoined and restrained the nationwide enforcement of sections 3(c) and 5(a)-(c)in their entirety." He also "enjoined section 5(e) to the extent that section “purports to prioritize refugee claims of certain religious minorities."

The Ninth Circuit referenced the U.S. Supreme Court holding in Zadvydas v. Davis (2001) while ignoring this following of that holding:

"The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law. ... It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. ... (Fifth Amendment's protections do not extend to aliens outside the territorial boundaries)."


Posted: QCOline.com February 19, 2017
Copyright 2017, John Donald O'Shea

Rioting Is Not Protected by First Amendment

On Feb. 3, a conservative speaker was slated to speak at the University of California at Berkeley. That's when "Black Bloc" intervened.

According to CNN (cnn.com/2017/02/01/us/milo-yiannopoulos-berkeley/), "150 masked agitators caused more than $100,000 worth of damage at UC Berkeley ... when demonstrators gathered to protest Milo Yiannopoulos, who was scheduled to give a speech at the school.

"Black-clad protesters, wearing masks, threw commercial-grade fireworks and rocks at police. Some even hurled Molotov cocktails that ignited fires. They also smashed windows of the student union center on the Berkeley campus.


"At least six people were injured. Some were attacked by the agitators -- who are a part of an anarchist group known as the "Black Bloc" that has been causing problems in Oakland for years ..."

If you haven't hear of Black Bloc, watch the video at usatoday.com/story/news/nation-now/2017/02/02/what-black-bloc/97393870/.

We are told by some that Black Bloc is not an organization; rather, it is a "spontaneous coming together of individuals" to act as a "protective shield" for "progressive protesters" against "police brutality." If you buy that, I've got a nice bridge to sell you!

As I watch the USA Today video, I can only come to one opinion: Black Bloc is a criminal conspiracy which engages in overt acts of violence intended to deprive other Americans -- with whom they disagree -- of their Constitutional rights of free speech, peaceable assembly and private property.

So what justifies rioting, the fires, the destruction of property? The left-wing anarchists disagreed with the political opinions of a man scheduled to give a speech.

So how long will the new administration put up with left-wing anarchists clad in black hoods and black masks? Are criminal thugs who run around and do violence in black hoods and black masks any better than the Klu Klux Klan? Are stormtroopers in black masks and robes any more noble than Klansmen in white robes and masks?

In 1870, The Congress, at the behest of President Grant, passed "An Act to enforce the Right of Citizens of the United States to vote in the several States of this Union, and for other Purposes."


The act was a response to terror, force and brutality used by the Klan (KKK) to prevent newly freed blacks from voting and exercising their newly granted Constitutional Rights. Section 6 criminalized "conspiring" or "going in disguise" to "intimidate" or to "hinder the free exercise" of any right granted by the Constitution. Conviction carried up to 10 years imprisonment.

Criminals, anarchists and rioters in hoods and masks -- whether those hoods and masks be white or black -- who riot in the streets to prevent anyone from exercising his First Amendment right to speak freely or assemble peacefully, or the right of any other citizen to own private property, are therefore playing a dangerous game.

The U.S. government virtually wiped out the first wave of the KKK using the Enforcement Acts. If the government decides enough is enough, 150 guys in black hoods and masks, as well as their financiers, may find themselves spending the next 10 years in federal prison.

Any thinking American should be revolted by Black Bloc's wanton destruction of property and attacks on police and bystanders. This rioting is exactly what the Nazi Brown Shirts, aka Stormtroopers, did in Germany in the 1930s.

The riots in Berkeley have the stench of Kristallnacht about them. Kristallnacht occurred Nov. 9-10, 1938. It was the night when Nazi Stormtroopers, wearing civilian clothes, to create the illusion of a "spontaneous demonstration," destroyed 267 synagogues and innumerable Jewish businesses throughout Hitler's Reich. Mobs of SA men roamed the streets, attacking Jews in their houses and forcing Jews they encountered to perform acts of public humiliation.

Our Constitution guarantees free speech. But free speech does not include incitement to riot, or the act of rioting. Attacking police and burning down buildings has never been constitutionally protected.


Posted: QCOline.com February 12, 2017
Copyright 2017, John Donald O'Shea

Were '90s Democrats Racists? Xenophobes?

I recently had a conversation with a brilliant man -- a liberal friend -- I've known for almost 50 years. He opposes President Trump's "extreme vetting" immigration policy.

"Christian charity requires us to admit the poor -- the oppressed - of any nation who would seek refuge here." Then, with a twinkle in his eye, he added "And if the additional 50,000 refuges that we situate in Michigan vote Democrat in the 2020 election, and turn the state 'blue' again, so much the better."

I wasn't sure, if his afterthought was serious or putting the needle in; whether his motivation was to be Christ-like, or to win the next election, or both. Perhaps because I saw a glaring contradiction between his deep concern for all who would immigrate here, and his utter lack of concern for the child in the womb, I wasn't sure whether winning the next election was his genuine concern.



I also couldn't help but compare his remarks on immigration with those made by another very prominent Democrat 22 years ago.

"All Americans -- not only in the States most heavily affected, but in every place in this country -- are rightly disturbed by the large numbers of illegal aliens entering our country.

"The jobs they hold might otherwise be held by citizens or legal immigrants.

"The public service they use impose burdens on our taxpayers.

"That's why our administration has moved aggressively to secure our borders more by hiring a record number of new border guards, by deporting twice as many criminal aliens as ever before, by cracking down on illegal hiring, by barring welfare benefits to illegal aliens.

" ... we will try to do more to speed the deportation of illegal aliens who are arrested for crimes, to better identify illegal aliens in the workplace as recommended by the commission headed by former Congresswoman Barbara Jordan.

"We are a nation of immigrants. But we are also a nation of laws. It is wrong and ultimately self-defeating for a nation of immigrants to permit the kind of abuse of our immigration laws we have seen in recent years, and we must do more to stop it."


This was six years before America became conscious of the real possibility of terror in the homeland -- six years before radical Islamic terrorists flew passenger liners into the Twin Towers, the Pentagon, and a field in Pennsylvania, murdering some 3,000 Americans; before Fort Hood, the Boston Marathon massacre, the attack on the Marine Recruiting Office in Chattanooga, and the San Bernardino Christmas party massacre. And before the Mexican Drug cartels really got going. Today those cartels ship cannabis, cocaine and heron across our open border. Chicago and other American cities have become killing fields as gangs kill over who controls territory. Drug-cartel related violence in the streets caused the Chicago Crime Commission to label Joaquin Guzman Loera, head of Sinaloa Drug Cartel, as Chicago's Public Enemy No. 1.

There are obvious reasons American parents for generations have taught their children to never talk to strangers. If a stranger came to your door, and asked if he could move into your home, would you let him? Would you be comfortable you could do so safely without "vetting" him? Would you let him sleep in a room next to your small children unless you were satisfied as to their safety?

The bottom line is this: Regardless of whether my friend's position on vetting is based on Christian charity or crass political considerations, it ignores the fact that ISIS and drug cartels are at war with us, even if we don't think we are at war with them.

Prudence is a Christian virtue.

By the way, my prominent Democrat was President Bill Clinton. The citation is from his Jan. 24, 1995 State of the Union speech.

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

Obama and MLK's 'Dream' 53 Years Later

When Barack Obama was elected president of the United States, I was wary of his associations, economic notions, views on foreign policy and disarmament.

At the same time, I was enthusiastic that a black American who had come from a home without a father, who had lived in Indonesia, and who had experimented with marijuana and cocaine, could overcome those disadvantages.

I was enthusiastic because Barack Obama had succeeded at Harvard, gotten his law license, gotten himself elected to the Illinois state Legislature, then to the U.S. Senate and ultimately to the highest position of trust and confidence in the land -- the U.S. presidency. Someone may have helped him along the way. But he still earned his own success.

I felt the most important message of the 2008 election was that "the doors were open" to any person in the United States -- regardless of religion, color or humble beginnings -- to become president. His success proved that work paid off.

If Obama, a minority, who had formerly messed with illegal drugs could become president, then any child from a broken home messing with drugs in Chicago or LA, could do the same thing -- if he set his mind to it!

Mr. Obama's election dispelled the myth that most of white America still wanted to keep black America down. (In 2010, 72.4 percent of Americans were white; 12.6 percent were black.) Without a great many white votes, Mr. Obama could not have been elected president.

Mr. Obama's election strongly suggested to me that Martin Luther King's dream of an America living up to the promises of the Declaration of Independence was inexorably coming true: "I have a dream that one day this nation will rise up and live out the true meaning of its creed: 'We hold these truths to be self-evident, that all men are created equal.'"

Former President Obama's election and MLK's speech inspired me to write a play, which I called "Mornings After the Dream."

The heroine is "Ethel," a black mother whose husband had been shot to death while perpetrating a liquor store robbery. Ethel was inspired by one of my favorite bailiffs down at the courthouse. All "facts" of my play came from my imagination -- except those pertaining to Ethel's character.

My Ethel is a woman widely respected in her church and her community. She is raising Terry, a surly, disrespectful teenage son, a school dropout, who has gone into the "businesses" of theft and dealing cannabis.

Terry blames the police for his father's death. Ethel doesn't. "It was all caught on a security camera. Your dad came out of the liquor store. ... [He] saw the officer, shot at him twice, and missed. ... The police officer returned fire. The camera showed it all. I must have watched it 20 times. ... You watched it, too, but you sees things that aren’t there, and which aren’t ever going to be there."

My Ethel, however, is a realist: "I realize there are still racists out there. But I also know millions of white Americans put race behind them and voted for President Obama ... Martin Luther King Jr. had a dream, President Obama had a dream. Why can't you share in their dream? ... If the white folk didn't work together to stop Barack Obama from getting to the White House, why should they waste their time messing with your?"

If President Obama has moved us closer to Rev. King's dream, then despite any other shortcomings, he will go down as a successful president.


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

Murder Committed by those with Little Respect for Life

The Fifth Commandment says, “Thou shall not kill.” Nevertheless, in 2016, there were 762 homicides in Chicago. But if God said, “Thou shall not kill,” then why?

Now we hear of a mentally handicapped young man being bound, gagged and tortured in Chicago.

Why?

Guns caused most of those deaths. Progressives, therefore, argue, “Ban all guns!”

But is the availability of guns the true cause of those killings? The torture? Do people who kill or torture their neighbors believe that destruction of human life is morally wrong? Punishable by God? Have they respect for life?

In 2015, Hillary Clinton told attendees of Women in the World Summit, “Far too many women are still denied critical access to reproductive health care and safe childbirth.”

Reproductive health care was Mrs. Clinton’s euphemism for abortion. She continued, “Laws have to be backed up with resources and political will. And deep-seated cultural codes, religious beliefs and structural biases have to be changed.”

Fairly read, Mrs. Clinton was saying not just that the right to kill fetuses had to be protected. She was saying that resources (taxpayer funding) should be used to make abortions more readily available. Even more chilling, she said, the religious beliefs of Catholics and those who believe abortion to be a moral wrong must be changed.

Do you doubt her meaning? In the same video she added:

“I would like to see Planned Parenthood even get more funding. ... The unborn person doesn’t have Constitutional rights.” (lifenews.com/2016/08/08/hillary-clinton-make-christians-change-their-religious-views-to-support-abortion.)

Thanks to Wikileaks, we have learned that Mrs. Clinton’s remarks were not her unique personal views.

The Clinton team had already created two organizations designed to undermine the church’s teachings on the right of the fetus to life.

In 2012, Mrs. Clinton’s campaign chairman John Podesta received an email from Voices for Progress president Sandy Newman stating, “There needs to be a Catholic Spring, in which Catholics themselves demand the end of a middle ages dictatorship and the beginning of a little democracy and respect for gender equality in the Catholic church.”

Newman suggested the Clinton team should “plant the seeds of revolution.”

Podesta responded, “We created Catholics in Alliance for the Common Good to organize for a moment like this ... Likewise Catholics United. ”

Newman and Podesta were discussing two politically funded front organizations created to undermine church teaching against abortion -- to convince voters that there is no moral wrong in killing unborn children; to undermine church teachings demanding respect for life.

During the first 15 years of my judgeship, I regularly heard every type of case an Illinois judge could hear, including criminal and juvenile delinquency cases.

Overtime, I perceived a pattern. The sentencing reports prepared by our probation officers contained certain commonalities.

Most criminals/delinquents:

1. Read poorly, and did poorly in school;

2. Came from homes without a father; and

3. Lacked religious affiliation.

I would be shocked if those same commonalities weren’t present in the 762 Chicago homicides; in the torture. People don’t commit crimes for three main reasons:

-- It is against the law, and they might be imprisoned;

-- They have been taught by their families (immediate and extended) the golden rule, and that crime is wrong;

-- Their church teaches that Hell exists and that God severely punishes murderers.

Without family and church, what passes for “moral training” most likely comes from the schools or from the streets. But any street morality that approves selling drugs and using deadly force to defend one’s turf, is not likely to discourage gun violence.

In modern America, people have many reasons why they are not involved with organized religion. But in this political cycle, we have seen something new: the brain-trust of an American party covertly attempting to undermine church teachings protecting the right to life.

Destroy religion, the family, respect for life, and reject morality, and death follows; first, for the unborn, stripped of protections, both moral and legal.

Then, for the rest of us, who are left only with those legal protections accorded us by amoral men.


Posted: QCOline.com January 14, 2017
Copyright 2017, John Donald O'Shea

 

Does Obama Really Want an Election Redo?

Was the 2016 election unfair? Void?

On Dec. 14, 2016, NBC News, quoting unnamed U.S. intelligence officials, reported that Russian President Putin "became personally involved in the covert Russian campaign" to elect Donald Trump U.S. president. President Putin's spokesman immediately dismissed NBC's report as "laughable nonsense."

So, why should this matter now?


Didn't Hillary Clinton publicly concede the election on Nov. 9?

"Last night I congratulated Donald Trump ... I hope that he will be a successful president for all Americans. ... I'm sorry we did not win this election...

"We must accept the result and then look to the future ...

"Donald Trump is going to be our president. ... Our constitutional democracy enshrines the peaceful transition of power. We don't just respect that; we cherish it."

Is Mrs. Clinton's concession no longer operable? Is the peaceful transition of power no longer enshrined? Cherished?

On Dec. 14, Josh Earnest, President Obama's official spokesman -- who says only what the president wants said -- claimed, "There’s ample evidence that was known long before the election and in most cases long before October about the Trump campaign and Russia -- everything from the Republican nominee himself calling on Russia to hack his opponent.”

What was Earnest's factual basis for that claim that Mr. Trump called on Russia to hack his opponent?

Perhaps this! On the stump, Mr. Trump said, "Russia has no respect for our country. ... If it is Russia, nobody even knows it's Russia ... It shows how weak we are. ... how disrespected ....

"Russia, if you're listening, I hope you're able to find the 30,000 (Clinton) emails that are missing.

"I think you will probably be rewarded mightily by our press. Let's see if that happens. That'll be nice."

Trump's sarcasm was obvious. But Earnest heard only a confession of guilt and let his imagination run wild: “It MIGHT be an indication that (Trump) was obviously aware and concluded, based on whatever facts or sources he had available to him, that Russia was involved and their involvement was having a negative impact on his opponent’s campaign.”

But if Mr. Trump was aware, wasn't President Obama also aware? Did candidate Trump have better intelligence than President Obama? Was the CIA reporting to Mr. Trump, but not to President Obama? If the Russians were hacking, why didn't President Obama do something then and there? Whose permission did he need? His mother's?

The president's spokesman is now implying that Russia unfairly interfered in our election to assist Mr. Trump: “It was obvious to those who were covering the race that the hack-and-leak strategy that had been operationalized was not being equally applied to the two parties and to the two campaigns."


The election was "unfair." Earnest's unspoken, but logical conclusion, is clear: That "unfairness" rendered the election void. We need a new election!

Bizarre? Perhaps. But watch CNN's interview with former CIA agent Bob Baer, who said, “I'm deeply disturbed by the fact that the Russians interfered, and I would like to see the evidence, 'cause IF the evidence is there, I don’t see any other way than to vote again” (cnn.com/videos/politics/2016/12/10/robert-baer-new-election-russia-hacking-nr.cnn).

Who does Mr. Baer suggest should decide if America should vote again?

Mr. Baer's proposal would require President Obama to declare the 2016 election "illegal and void." But where in the Constitution is a president -- or anyone else -- given power to cancel election results, cling to power, and require a do-over?

There, of course, are leftist precedents for that. Fidel Castro (1961) announced an end to democratic elections in Cuba, and made himself president-for-life. Would Mr. Baer have President Obama stage a Castro-like coup d'etat? The left decries our "national divide." Would a coup be likely to heal that?

Our Constitution limits President Obama to two, four-year terms, and provides his term ends at noon on Jan. 20.

If the Russians hacked John Podesta's emails, Obama had his at-bat and whiffed. Now, Trump's the batter; it's his job to deal with Russian spit balls -- past and future.

Posted: QCOline.com January 7, 2017

Copyright 2017, John Donald O'Shea