Mike Lee: The Fudge Factor

MikeLeeThumbby Anniel6/7/15
After reading Senator Lee’s new book on Our Lost Constitution, I have had a chance to let it perk a bit and get on with some of my promised thinking about his stories.

There were two stories in particular that I felt a need to study and consider further, plus a proposed piece of legislation Lee is a co-sponsor on that I still want to ponder a little further.

John Wilkes (1725-1797). Story as told in Chapter 3 of Senator Lee’s Book.

When I read Senator Lee’s account of John Wilkes and the profound effect he had on the adoption and writing of the “forgotten” Fourth Amendment to the United States Constitution, all I could think was, “How could this man, who accomplished so much, have been so totally forgotten in our history?”

Take a look at that Fourth Amendment:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

John Wilkes was an undistinguished Member of Parliament sitting in the House of Commons when he discovered he had a way with words. He began publishing political tracts, especially against Jon Stuart, Earl of Bute, and George Grenville, who were King George III’s closest friends and advisers.

Wilkes was arrested three times for defamation and immediately released because he was a sitting Member of Parliament. Then his Pamphlet No. 45 (dated in 1763) was published, insulting not just the integrity of the King’s Advisers, it also crossed the line and criticized the King. Wilkes was expelled from Parliament, then, under a general warrant, his home and printing office were searched and all his property and papers seized. Some 40 other people, most of whom were not even connected to the pamphlet, were also arrested and their property seized.

People in Wilkes’ district were so angered by these actions that they re-elected Wilkes to Parliament 5 times in the next few months, even though he was expelled again and again. Finally he was arrested again and the man who ran against him declared to be the winner because he should have won “if the people were in their right minds.”

Wilkes was elected Sheriff of London and decided to sue His Majesty’s Ministers and Government over improper behavior, improper general warrants, theft, loss of property, and whatever else he could think of. All of the others arrested also sued. The whole episode became known as the case of No. 45, after the Pamphlet number.

Wilkes and the others were cleared of all charges and awarded very substantial sums, thoroughly embarrassing the crown. The King’s top Minister, George Grenville, was forced to resign over the matter. The Judges also ruled on improper searches and seizures. There would be no more General Warrants containing no names or items to be seized.

The leading revolutionaries in the American colonies were elated by Wilkes victories and made him a champion of freedom. Wilkes-Barre and Wilkesboro are just two of the places in the U.S. named for him. Babies were also named for him and every school boy in America idolized him. The revolutionaries in the colonies began resisting searches and seizures and insisting on the basic rights of Englishmen through the courts.

Wilkes fled to France at one point and was arrested when he returned to England. John Hancock and other signers of the Declaration of Independence sent Wilkes money for his legal defense and supplied him with wine during his incarceration.

Then out of nowhere you read that Benjamin Franklin absolutely detested Wilkes and said he was one of the worst men alive. And so it does turn out to be. He was a self-promoter, true libertine, a pornographer whose poems were so vile that even today almost no site will publish them (I didn’t search that out). He was also a con-man, member of a notorious sex club, a liar and thief — in short a thoroughly despicable man.

After Grenville’s death, one of his daughters asked Wilkes why he hated her father so much. She wrote that Wilkes looked at her in surprise and said he had never hated her father, in fact he thought he had been a good Adviser to the King. Why then, she asked him, did you destroy my father? His answer? Something about that was how the game is played and because he could.

And not a whisper of this from Senator Lee.

Wilkes did have a good effect on the Writers of the Constitution I will admit, even though he was such a scoundrel.

Hugo Lafayette Black (1886-1971), U.S. Senator, Alabama, (1927-1937); Associate Justice, U.S. Supreme Court (1937-1971). As told in Chapter 4 of Senator Lee’s book.

In 1921 Hugo Black was a high powered attorney in Birmingham, Alabama. He was hired by the Ku Klux Klan to represent a white man named Edwin Stephenson, arrested for the shooting death of an unarmed Catholic Priest who had performed the marriage of Stephenson’s daughter to a Puerto Rican immigrant. Most members of the jury, the prosecuting attorney, and the judge were all members of the Klan. They hated blacks, Catholics, and immigrants.

After the trial, which he won using horrible tactics, Black decided to run for the Senate and joined the KKK, which happily backed him. One of the things he voted against in the Senate was an anti-lynching bill. Does that tell us something?

In 1937, President Franklin Delano Roosevelt nominated Black to the Supreme Court. He was confirmed to the position before Congress or the public learned he was a member of the KKK. A wave of anger and revulsion swept Congress and the nation, but the deed was done. Black said he had never been an “active” member and Hitler was on the march, so Black was swept from the stage, although he had plenty of political enemies. He would serve on the court for the next 34 years.

Lee says that Black always detested Catholics and he wanted to find a way that would make it impossible for Catholic Schools to receive any federal funds for their children in Parochial schools. In the 1940’s the case of Everson vs. Board of Education wound its way to the Supreme Court and, Lee says, Black determined to use the case to crush the rights of Catholic parents to use school bus service in New Jersey, even if it meant lying to do so.

In 1947, six members of the Court voted to uphold the constitutionality of states granting funds to the church, so Black “hatched a plan,” per Lee, to make sure things would go his way. He voted with the majority and wrote the majority opinion in such a way that the “wall of separation between church and state,” mentioned in an obscure letter from Thomas Jefferson, would become the law of the land. And from that opinion the First Amendment right to Freedom of Religion was changed, solely by the subterfuge of Hugo Black.

There’s a lot more Senator Lee discusses, but for our purposes that’s the basic story as told by Lee.

I realized as I read this chapter, over and over, I had no idea how the court handles its opinions. Why was Black so sure he would write the Majority Opinion, and how could he write an opinion for the majority that they didn’t agree with? Why didn’t they stop him? I remembered hearing references to Court members writing “blistering dissents,” even when they were on the winning side but thought other things were more germane. All written opinions are retained in the case files and open for scrutiny.

As I now understand it: If the Chief Justice is on the majority side, he chooses who writes the Opinion. If he is in the minority, the longest serving member on the majority side chooses; ALL members of the court may write opinions, even if the Opinion is unanimous; it is customary for drafts of all opinions to be circulated, and for justices on both sides to criticize the writer’s citations and interpretations of the law.

After reading on the matter I feel that Lee could not have given a correct account of what actually occurred in the Everson case. Maybe Black was the longest serving Justice on the Majority side and appointed himself to write the Opinion, but there is simply no way that the other 6 Justices would not have recognized what he did and given their consent to the Opinion, if they did not agree with what he wrote.

It is more correct to say that the Court itself, by a vote of 7 to 2, passed the majority opinion and agreed with it.

Senator Lee served as a Clerk to Antonin Scalia, so he understands the Supreme Court. His writing is misleading. I do not know why.

* * * *
If anyone faults my reasoning on these two matters, please feel free to say so. The fudge factor here leaves me disturbed.

One more paper on a proposed reform to go. • (893 views)

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14 Responses to Mike Lee: The Fudge Factor

  1. Timothy Lane says:

    John Wilkes was a Whig and supported the American revolutionaries, so it’s natural that most of the patriots supported him so staunchly. John Wilkes Booth was named after him.

    Alabama was a heavily anti-Catholic state. Herbert Hoover almost carried it in 1928 against Al Smith, partly because a local Senator endorsed him.

    • Anniel says:

      Hugo Black seems to be a mixed bag on the Supreme Court, and was actually called a “strict” follower of the Constitution. He apparently resigned from the KKK when he went to Congress and said once that to win in Alabama you had to be a clansman. He also supported FDR and the “New Deal.” He seems to have changed a lot while on the Court, but Lee quotes such vile crap from him that I can’t get a real handle on him.

      Wilkes is a study in contrasts. Psychopath? Maybe.

      • Timothy Lane says:

        Supporting the New Deal doesn’t preclude having the sensibilities of a Klansman. Tom Watson was a fiery Georgia populist — and also a thoroughgoing racist. Bull Connor was a pro-labor Democrat. Orval Faubus was considered relatively progressive until he decided to use race to justify staying in office longer than the Arkansas tradition called for.


    I wouldn’t say I faulted your reasoning in either case; I think the fault in the first lies with Lee for giving John Wilkes too much credit. What Wilkes deserves credit for was having the guts to press his case with what was, fortunately for him, a very independent judiciary. Wilkes invoked the old principle that even the agents of the King were subject to the law, and if they violated private rights they could be held personally responsible (i.e. sued).

    About the same time as Wilkes was fighting this battle, a more famous English case (Entick v. Carrington) established that illegal searches and seizures were actionable. But for the actual language of the 4th Amendment, we must look to James Madison, who in turn had relied upon George Mason’s Virginia Declaration of Rights. In other words, the 4th Amendment is the product of a long chain of thought and legal decisions, of which Wilkes played only a relatively small part.

    I don’t know the Everson case well enough to comment on what went on behind the scenes. However, it would not be the first time nor the last willful Justices with an agenda schemed to use a decision to inject a favored principle into the law. Black himself was on the other side in the more famous case of Mapp v. Ohio, where enough member of the majority apparently met in secret and decided to create the Exclusionary Rule out of nothing. Black would have been content to overturn the conviction (for possession of pornography by an Ohio landlady!) on First Amendment grounds.

    • Anniel says:

      Thanks Nik. I have been looking at the REINS Act now. It’s like wading through the brambles to make sense of so much of what goes on. And the likes of Rand Paul only confuse things more. How the average citizen gets any help in understanding the workings of government is a mystery. Maybe that’s the point.

  3. Brad Nelson Brad Nelson says:

    Annie, is your beef with Mike Lee that he wasn’t clear enough that Wilkes was a morally dubious character even if he did have a good idea about illegal searches?

    I’d never heard of Wilkes or his story, so it was very informative learning a piece of history…pornography and all (although a Google search turns up nothing more frightening than a somewhat misogynist pamphlet or book he wrote). Sounds as if he was a real tiger on the prowl most of the time. And short of rape, it’s funny how that type finds so many willing women.

    I’m not sure what the etiquette is on referencing historical persons, whether each and every time we must say “yeah, but” about other aspects of their character. But it certainly sounds as if Wilkes was more a man of the Left, a person who had “high ideals” but was a personal sleazebag.

    • Timothy Lane says:

      Wilkes is famous for an exchange with the Prime Minister in which the latter said Wilkes would die either of the pox or hanging, and Wilkes replied, “That depends on whether I embrace Your Lordship’s mistress or Your Lordship’s Principles.” It should be noted that just as being a slave-owner was the norm among Southern planters of that era (including Jefferson and Washington), being a rake was the norm for 18th Century British high society (something William Hogarth targeted in some of his art). That was the era of the Hellfire Club, which may have been the organization Anniel mentioned.

      • Kung Fu Zu Kung Fu Zu says:

        being a rake was the norm for 18th Century British high society

        This carried on and reached its height in George IV. His brother was not quite as bad, but it was his niece Victoria and her era which changed things. Most Americans’ concept of the British is based on the mores of and traditions established in the last 25 years of the 19th century.

        I believe the saying, “drunk as a lord” comes from the time of Hogarth and the drinking of tea was seen as a remedy against the rampant drinking of the time. The British Tea came about sometime around the middle of the 1800’s as I recall.

        • Timothy Lane says:

          Being drunk was associated at least as much with the lower class due to the availability of cheap gin. “Drunk for a penny, dead drunk for tuppence.” Hogarth had a pair of works contrasting the moderate drinking of beer by middle-class types and drunkenness on gin by the poor.

          • Kung Fu Zu Kung Fu Zu says:

            Being drunk was associated at least as much with the lower class due to the availability of cheap gin

            True enough. What is the name of that famous picture, “Gin Lane”?

            The reformers pushed drinking tea on both the upper and lower classes. Of course, once the lords gave an example, it was somewhat easier to get the plebs to follow suit.

            The whole Victorian era was one big reformation of public and private morals.

            • Brad Nelson Brad Nelson says:

              I don’t know if this link will work, but here’s Hogarth’s Gin Lane. A rather remarkable drawing at first glance.

              I have a confession to make. I would have gladly joined in and become an official rake if my inhibitions were lower than they are now. Honesty requires I say this. I would have made a great hound. I would have likely died from syphilis — my brains eventually oozing out my ears — but what a way to go.

              Or let’s just say I would have loved to have a full apprenticeship in being a rake. But there’s another side of that, and you see that so vividly captured in the black and white painting or drawing (I can’t tell which). You become a low beast eventually. Most proscriptions regarding sexual morality likely have this in mind.

              I’m still available if it’s not too late to enroll in Rake University. And I suppose that Vanity cover would work nicely alongside Hogarth’s Gin Lane.

              Here’s a hi-res view of a portion of it. It looks possibly like it’s an engraving.

              Oddly, here’s the image reversed…and the type still reads right. I’m not sure what somebody has done.

              • Timothy Lane says:

                I notice they also have his counterpart, “Beer Street”. My collection of Hogarth includes discussion of each piece. It notes that Beer Street is generally prosperous (though the pawn shop isn’t doing so well), whereas Gin Lane is mostly poor (except the pawn shop, where a carpenter is pawning his tools, and the gin shops). The folk of Beer Street are basically sober people taking a pleasant break, whereas those in Gin Lane are dead drunk — such as the woman too soused to notice (or maybe care) her baby falling toward the street below.

  4. Anniel says:

    Talk about “True Confessions.” Somehow I don’t think any of you guys would make good “rakes.” You think too much, and I don’t picture any of you as “out of control” in any sense of the word. But thank heavens for Queen Victoria or how much more lost Great Britain would be.

    I think my thing with Mike Lee is I want his every word to be sterling, no ifs, ands or buts. Mike Lee said it, it must be so. Ah, well, maybe fudging it is a better story. When he was on Rush today, I heard Mark Steyn talk about fudging things. He doesn’t like it either so I’m in great company.

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