Religious Liberty Needs Open Courtrooms to Survive

This afternoon, the House Judiciary Committee is holding a hearing on ”The State of Religious Liberty in America.” Among the witnesses will be Colby May, Director and Senior Counsel of the Washington office of the American Center for Law and Justice (ACLJ), one of the premier pro-religious liberty groups in America. Colby May goes to court all the time to protect religious liberty, taking advantage of the 7th Amendment rights protected by the Founding Fathers to enable Americans to exercise our faith without infringement by the federal or state governments. His testimony recognizes that, ”The courts and the judges that preside over them will largely determine the strength of America’s religious liberties.” And he is testifying about the recent instances in which courts have failed to protect our rights against a college administrator, such as has happened at the University of California in the Christian Legal Society v. Martinez case.

I hope Members and witnesses remember that to survive, religious liberty needs open courtrooms. Any measure to restrict the ability of Americans to file a lawsuit in court compromises our ability to defend our religious liberty. So, for instance, the Judiciary Committee’s original bill to toughen sanctions against attorneys under the Federal Rules of Civil Procedure could have resulted in a nonprofit’s or small-sized law firm’s refusal to take on a religious liberty lawsuit because of potential attorney sanctions. That’s why the committee added a rule of construction to exempt lawsuits over constitutional issues from application of the proposed sanctions. Similarly, the application of the Supreme Court’s decisions in the Iqbal and Twombly cases could result in the dismissal of a religious liberty case that would otherwise proceed to the discovery, if the attorney can’t provide the threshhold level of documentation needed to meet the stricter pleading standards enunciated by the Court in those cases. A plaintiff seeking to protect religious liberty rights against an overbearing college or business might find it difficult to meet the standards if witnesses to the behavior at issue are afraid to come forward without a subpoena.

The Founding Fathers didn’t differentiate between lawsuits to protect constitutional rights and lawsuits for negligence; they designed the civil justice system for all causes. The “tort rerform” movement could continue to spark conflict with social conservatives over the access to civil justice, unless Americans tell Congress and state legislatures to keep courtroom doors opened.

Republican Tort Reform That Could Hurt Social Conservatives

I met this week with two of the top litigators in America for social conservative cases in federal and state courts. Both are involved in civil suits filed to fight the Obamacare contraception mandate and to defend state traditional marriage amendments. I discussed two bills recently passed in the U.S. House, and supported by Congressional Republicans, with a “Loser Pays” provision that forces the losing party in litigation to pay legal fees, which is used in courts in Europe to discourage litigation. The social conservative litigators are completely opposed to Loser Pays, and I urged them to take their objections public and to inform Republicans in Congress. Indeed, they told me that many of the Obamacare contraception cases they’ve filed – Hobby Lobby et al – would never have been filed if we had a national Loser Pays rule in American courts.

So why are they opposed to Loser Pays?

Loser Pays rules ensure that only the wealthiest plaintiffs can afford to undertake a civil action and also punishes individuals with serious and meritorious claims for seeking access to justice. Loser Pays rules fail to recognize that a person or a business can have a legitimate claim regarding fact and law, and yet still ultimately lose the case, sometimes on procedural grounds. In reality, for most individuals and small businesses, the financial risk of having to pay the other side’s costs and legal fees is one too great to bear, no matter how meritorious the claim. Indeed, Loser Pays schemes create a chilling effect on plaintiffs with worthy, legitimate disputes, and hamper access to the courts.

Loser Pays rules overlook the fact that state and federal judges have full authority to issue sanctions, including awards of legal fees, if parties engage in wrongful conduct or waste judicial resources. Mandatory Loser Pays rules trample on this tradition of judicial discretion and would overturn states’ rights to define their own civil justice rules.

From a purely political standpoint, Loser Pays hurts plaintiffs within the Republican base. Loser Pays rules hurt social conservative litigators, such as the Alliance Defending Freedom, ACLJ and the Becket Fund, as well as entrepreneurs who sometimes depend on the civil justice system. The Chamber of Commerce, which proposes Loser Pays laws in states across the country, and the business community don’t represent those conservative groups and small businesses and won’t protect them.

Of course, Loser Pays also hurts liberal nonprofit litigation groups, but many of those groups are already fighting Loser Pays bills in Congress and statehouses across the country. They need conservative groups to start warning Republicans, before the trend goes too far.

A Special Welcome to Tea Partiers All Constitutional Conservatives

I’ve watched the development of the new wave of grassroots “Constitutional conservatism” and the Tea Party movement with great interest and hope, and it reminds me of the rise of the Reagan Revolution, in which I participated as a campaigner in 1980 at Notre Dame Law School (where I met him) and then as a political appointee during his Presidency. The national debate over the increasing size and scope of the federal government, especially during enactment of the health care and stimulus bills, has sparked an entire movement dedicated to the rediscovery of the principles of limited government and individual rights. I agree with every word of the “Mt. Vernon Statement” and applaud the conservative activists who signed it. I invite them and all like-minded Americans to honor the 7th Amendment as a bulwark against an encroaching federal government that takes a bite from our wallets and steps on our hopes and dreams. On this website, I’m going to discuss, in detail, the ways in which the 7th Amendment is being attacked almost daily, from legislative proposals for federal preemption of state law and artificial liability limits, to court decisions with judge-made limits on the filing of civil suits. Defending our Constitutional rights requires a vigilant, principled defense of each amendment in the Bill of Rights – remember, the man who drafted the 2nd Amendment right to bear arms, James Madison, simultaneously drafted the 7th Amendment right to a jury trial in civil suits and called it “one of the best securities to the rights of the people.”

I also invite Tea Partiers and Constitutional conservatives to submit their ideas, articles, and quotes in support of this website and will give you credit here. Stay in touch!

Pro-7th Amendment Broadcaster Now On Sirius Satellite Radio

I’ve written often about the interviews conducted by Terry Lowry on his radio show, the What’s Up show, broadcast on 12 radio stations from Houston to Chattanooga to Pittsburgh. I’m pleased to announce that this pro-7th Amendment broadcast, by a noted social conservative and Christian broadcaster, is now also heard on Sirius satellite radio on Channel 131, Family Talk Radio. Now the entire nation can hear periodic reports on civil justice issues and a defense of the Founding Fathers’ plan for open courtrooms for all types of cases, from medical malpractice and defective products to religious liberty, property rights and other personal rights. The interviews are also available for downloading from the What’s Up home page.

Terry interviewed me for today’s broadcast, and we discussed recent congressional action to assist property rights owners, victims of forced abortions, and American victims of Iranian terrorism by enabling their lawsuits. I noted the inconsistency between the protection by many Congressmen of those groups’ 7th Amendment rights and the attacks by some of the same Congressmen on medical malpractice lawsuits. As I noted, the Founders built a civil justice system to enable Americans to have their civil suits heard before juries in all types of cases. The Founders didn’t differentiate between lawsuits to protect property rights and medmal claims, and neither should Congress. See my post of January 25 on the reasons for Republicans and Tea Partiers to support open courtrooms for all.

You can download listen to the first interview segment here and to the second interview segment here.

House GOP Leaders Trash States Ignore Real Reform in Special Memo

In a special memorandum issued to House Republicans this week, the four senior House Republicans (Reps. Boehner, Cantor, McCarthy and Hensarling) laid out their plan for implementing a ten-year federal budget under Rep. Paul Ryan’s plan and that would avoid cuts in national security and certain domestic programs. In so doing, they thoroughly trashed the concept of state sovereignty over their own judicial systems, and ignored real budget reforms that save far, far more than would their beloved federal medmal limits bill, H.R. 5, the bizarrely named “HEALTH Act.” Anyone with a true allegiance to the Constitution and Bill of Rights should see this plan as a death knell of states’ rights, delivered by House Republican leadership as a diktat to the Congressmen.

The last section of the memo is titled, “Reforming the Medical Liability System,” and it begins by condemning state supreme courts: “Many state supreme courts have judicially nullified reasonable litigation management provisions enacted by state legislatures… ” So the leaders apparently don’t have much respect for the state judges selected or elected under the state constitutions. But state legislators don’t get any respect either, with the leaders stating later in that section, “Further, abusive state tort laws drive what is known as ‘defensive medicine,’…” Well, those state tort laws don’t just drop out of the sky; they’re enacted by the elected representatives of the people under state constitutions.

So, in a little more than a page, the House GOP leaders tell the 50 states and the people who elect the state legislators that they’re all idiots unworthy of governing themselves. It’s the arrogant, Washington-know-it-all attitude on open display, exactly what the House Republicans were elected to replace under the Capitol dome.

And in between those two quotes is another one, the Big Lie about H.R. 5: “The HEALTH Act also does not preempt any state law that otherwise caps damages.” EVERY constitutional scholar who has studied and written on the bill, from Randy Barnett and Rob Natelson and the Heritage Foundation to Ted Frank and Walter Olson, has concluded otherwise. In almost 8 hours of debate on the House floor, and several more this week in the House Judiciary Committee, proponents of H.R. 5 haven’t been able to point to ONE, just ONE current scholar who believes that H.R. 5 protects or respects state laws.

The leaders’ utter disregard for the Constitution, buttressed with their extraordinarily hypocritical stand against Obamacare on constitutional grounds, is the reason why a small but increasing number of House Republicans are vocally rebelling against the leaders’ insistence on H.R. 5. They know that federal tort reform is as violative of states’ and individual rights as Obamacare, as both are based on the overly broad, Wickard v. Filburn interpretation of the Commerce Clause and the Necessary and Proper Clause.

These Members also realize that the pittance supposedly saved by H.R. 5, now estimated at $41 billion over ten years (under 1% of the total budget for that period), is dwarfed by Rep. Ryan’s own proposal to change Medicare and Medicaid, where the real health care dollars are spent. He estimates his plan would save hundreds of billions of dollars. Whether you agree with that proposal or not, it’s an option defended by the senior House Republican on the federal budget.

But House GOP leaders won’t propose or defend that plan. Instead, it’s full speed ahead on the road to federal control of state courtrooms.

Even Tort Reform Advocates Admit That HR 5 Is Impermissible

Impermissible.” That’s the word used last week by pro-tort-reformerTed Frank on the Point of Law legal blog to describe the Constitutional status of H.R. 5, the “HEALTH Act,” designed to pre-empt most health care-related lawsuits around the country. His post conceding that Congress should not “impermissibly federalize all medical malpractice litigation” capped a stunning week in which intellectual support for H.R. 5 evaporated.

As I wrote here earlier, on May 21, Prof. Randy Barnett, the GOP’s favorite Constitutional scholar, wrote a scathing op-ed in the Washington Examiner and a Volokh Conspiracy blog post, both of which condemn H.R. 5 as a breach of states’ rights (attached as Acrobat docs). He asked out loud if the House GOP are “fair-weather federalists.” His op-ed was an intellectual and political earthquake; it was very widely distributed and the subject of an article in ‘The Hill’ on May 23. And note that Barnett’s objections are NOT resolved by exempting state constitutions and courts from the reach of the bill, as Democrats tried to do during two committee markups.

On May 22, Prof. Ilya Somin of George Mason Law School, another Tea Party-side scholar, concurred with Prof. Barnett in a Volokh blog post, and he took his own shots at GOP supporters of H.R. 5. “Hopefully, at least some Republican conservatives will begin to see that you can’t advocate strict limits on federal power with one hand while trying to impose sweeping federal control over state tort law with the other.”

On May 23, Ted Frank wrote his concession. Quote: “It’s easy enough for Congress to condition portions of Medicare block grants on a state establishing reasonable medical-malpractice litigation guidelines, or for Congress to prohibit certain types of lawsuits over federally-funded medical care. It doesn’t need to impermissibly federalize all medical malpractice litigation to accomplish reform.” (Emphasis mine.)

That day, another noted legal expert on the pro-tort reform side, Walter Olson of the Cato Institute, also conceded that Barnett is right (attached in an Acrobat document). A short segment: “Thanks to star libertarian lawprof and Cato senior fellow Randy Barnett for pointing out something that has needed saying for a while: most proposals in the U.S. Congress to address medical malpractice law run into serious federalism problems. Most medical malpractice suits go forward in state courts under state law. If the U.S. Congress wishes to impose a nationwide rule on these suits, such as by limiting damages for pain and suffering, it first needs to answer the question: under which of the federal government’s constitutionally prescribed powers is it acting? Even if it can identify such authority, it should also ask: is it a wise idea–consistent with what one might call a prudential federalism–to gather yet more power in Washington at the expense of the states? Unfortunately, the backers of the current federal med-mal bill have chosen to rely on the Supreme Court’s very expansive “substantial effects” doctrine…” (Emphasis mine.)

On May 24, conservative legal expert Jonathan Adler added his opinion while commenting on Olson’s post: “Olson is anything but an opponent of tort reform generally. Indeed, he’s been one of the litigation explosion’s most prominent critics. But he recognizes that support of a particular policy goal does not require abandoning a principled commitment to the broader federalist scheme.” (Emphasis mine.)

On May 26, Prof. Randy Barnett was interviewed on the nationally syndicated ‘What’s Up’ radio program by host Terry Lowry about how H.R. 5 violates the limitations on the powers granted to the federal government in the Constitution and Bill of Rights. You can listen to the first segment of his interview here and listen to the second segment of the interview here (MP3 audio files). Starting at 2:32 of the second segment, he said, “Congress doesn’t really have the authority to do tort reform legislation because that has historically been within the province of the states…” He proceeded to reiterate the other points of his op-ed and that federal tort reform legislation is an abuse of the Commerce Clause, a point that Rep. Ted Poe made during consideration of H.R. 5 by the House Judiciary Committee.

Also recall that Constitutional conservative Rob Natelson of the Independence Institute in Colorado wrote a letter to the House Judiciary and Energy & Commerce Committees weeks ago to advise them that H.R. 5 is unconstitutional, with arguments very similar to those of Prof. Barnett. So that’s six Constitutional experts against H.R. 5, from Natelson to Adler.

There’s only one important question left for Republicans about H.R. 5, and it’s purely political: WHY would the House GOP run over the Constitution to reward those medical associations which were the co-conspirators in the enactment of ObamaCare, thus shoving the unconstitutional individual mandate down our throats?!

Iqbal-Twombly Pleading Standards Could Also Threaten Religious Liberty

On June 28, I posted about the change in federal pleading standards brought about by the Supreme Court in the Iqbal and Twombly decisions, and how those decisions infringe upon the rights of American terrorism victims to sue terrorist financiers in federal court. Those decisions could also threaten every American’s religious liberty through imposition of an uncertain “plausibility” standard, which invites “defensive lawyering” and subjective dismissals of complaints by individual judges. The Alliance Defense Fund, a Christian-based nonprofit which litigates religious freedom cases nationwide, criticized the Iqbal-Twombly standards in a a January 26, 2010 letter to the Chairman of the Senate Judiciary Committee. Here’s what ADF said about the decisions:

“Our concern with this is not that the Twombly rule makes our plaintiffs work more difficult, or our defense work easier. Rather, our concern is that vague, malleable rules are bad news when it comes to orderly, reasoned processes. Already, the Twombly standard has unnecessarily complicated the early stages of litigation by encouraging “defensive lawyering.” Plaintiffs’ lawyers are now motivated to increase the complexity, length, and detail of their complaints, anticipating that their case will be one that needs “amplification” to become “plausible.” In turn, defense lawyers now have to respond to these expansive “toss in the kitchen sink” pleadings, and are motivated to litigate motions to dismiss that they never would have invested in under the clear Conley standard. This is not speculation, but based on direct experience with Twombly in our cases. Worse, the virtually unbounded discretion built into the Twombly standard may encourage some overworked, harried judges to dismiss cases based upon their subjective notation of what is “plausible,” and leave it to the appellate courts to sort out. The result, again, is further strain on judicial resources, and litigating matters that would not have been at issue under Conley.”

The letter cited three cases in which ADF has already faced the impact of the Iqbal-Twombly decisions: Freedom from Religion Foundation, Inc. v. Obama, 617 F. Supp. 2d 808; Boardley v. U.S. Dep’t of Interior, 605 F. Supp. 2d 8; and Creed v. Family Express Corp., 101 Fair Empl. Prac. Cas. (BNA) 609. And ADF concluded that it would be “prudent” for either the courts or the Congress to resolve the mess created by the new standards by returning to the practical, fair pleading standard employed for decades under the Conley case, also discussed in my June 28 post.

Families of Servicemen Killed by Iranian Terrorism Need Our Calls to Congress

Lynn Derbyshire, national spokesperson for the hundreds of family members of our servicemen killed in the 1983 bombing of the Marine barracks in Beirut, Lebanon, was interviewed yesterday by Terry Lowry, host of the “What’s Up” radio program. That program is heard daily on twelve radio stations and on Sirius Family Talk Radio, Channel 131. Ms. Derbyshire’s brother, Vincent Smith, was among the 241 servicement killed in the bombing in October 1983. She discussed the bombing of the barracks by Iranian-sponsored terrorists, the court judgment for $2.6 billion obtained against Iran by the families and the attachment of an Iranian account with $1.8 billion in funds, and the efforts to enact a bill in Congress (H.R. 4070 in the House and S. 2101 in the Senate) to punish Iran for its terrorism and assist the families. Ms. Derbyshire discussed the opposition to the bills by a Wall Street institution, DTCC, which in effect is siding with Iran. The Shariah Finance Watch blog has opined that DTCC’s opposition “should amount to treason.”

Ms. Derbyshire and the families urge all Americans to contact their Congressmen and Senators to ignore DTCC’s opposition and support the bills.

You can listen to the interview in four segments, linked below:

Segment One: The bombing and impact on families

Segment Two: The court judgment against Iran

Segment Three: The frozen Iranian funds & DTCC’s opposition

Segment Four: The legislation and calls to Congress

Debt Reduction Supercommittee Should Ignore CBOs Guesswork on Tort Reform

The AMA and other medical groups have advised the Joint Congressional Committee on Deficit Reduction (the “supercommittee”) that federally imposed limits on lawsuits over medical malpractice could save as much as $62 billion over ten years, citing the estimate provided last year by the Congressional Budget Office. Besides the fact that such limits are unconstitutional, but there are multiple deficiencies in the CBO estimate and reasons for the supercommittee to ignore that estimate.

First, as I wrote here on January 6, “The Congressional Budget Office has a long, inglorious history of large-scale, massive errors in its scoring of budget proposals.” As economist Alan Reynolds warned years ago, the CBO not only has a lousy record of estimating ten-year budget deficits and projections of policy impacts, but it’s missed often on just year-to-year projections. It’s no wonder that House Majority Leader Eric Cantor accused the CBO of outright “budget gimmickry” in its calculations last year on the supposed “savings” that would result from ObamaCare, or that Cantor and House Speaker John Boehner criticized CBO for predicting that repealing ObamaCare would cost $145 billion.

Second, as attorney Brett Emison points out, CBO admitted last year that it did not “consider the effect of tort reform on patient health and medical outcomes. Remarkably, the CBO determined that ‘many studies of malpractice costs do not examine health outcomes.'” As I wrote on January 14, implementing CBO’s projection of “savings” of $54 billion could actually result in more deaths and injuries. CBO admitted in its estimate that limits on medmal lawsuits could “an additional 4,853 Americans killed every year by medical malpractice, or 48,250 Americans over the ten-year period CBO examines.” And another 400,000 or more patients could be injured during the same 10 years.

Third, the CBO can’t estimate the impact that sweeping limits on medmal lawsuits would have on federal health care costs paid for by Medicare, Medicaid, and the Veterans Administration. If someone is brain-damaged, mutilated or rendered paraplegic as a result of medical negligence, but cannot obtain compensation from the culpable party through the tort system, he or she may be forced to turn to those programs for compensation. None of these increased Medicaid or VA hospital costs are considered in the CBO estimate. Whenever there is a successful medical malpractice lawsuit involving an elderly or poor person, Medicare and Medicaid can claim either an interest in whatever the patient recovers, so the victim reimburses the government for some of the health care expenditures. Without the lawsuit, Medicare and Medicaid will lose funds that the government would otherwise be able to recoup. And none of these lost funds are considered by the CBO.

Fourth, CBO guesstimated that imposing federal lawsuit limits would result in a reduction in a drop in liability insurance premiums, but provided no raw data, explanations, or sources to back up its estimate. Numerous states have already imposed caps on medmal lawsuit damages, with no impact on personal health insurance premiums. CBO makes the same assumption that ObamaCare proponents made, that Uncle Sam can wave a wand and magically force health insurance premiums to drop. How’s that one working out for us?

Anyone betting on federal lawsuit limits to balance the budget is wasting their time. Not only is it unconstitutional, but it won’t raise real money and solve our budget problems.

Beltway Legal Elitists Support Supremacy of Federal Law Over 7th 10th Amendments

I previously wrote about a panel at the National Convention of the Federalist Society on November 20 about the potential for reviving the right to a jury trial for civil suits as enumerated in the 7th Amendment. One of the panelists, attorney Michael Carvin of Jones Day, and an audience participant, Roger Pilon, Vice President for Legal Affairs at the Cato Institute, had disturbing reactions to the pro-7th Amendment remarks of Gibson Vance, President of the American Association for Justice. Mr. Vance discussed the anti-7th Amendment nature of the Supreme Court’s affirmation of federal pre-emption (the federal overruling of state statutory and common law, including jury decisions) in Riegel vs. Medtronic; and the use of forced arbitration clauses in consumer contracts, citing his family’s experience with nursing homes. You can see his remarks starting at the 44-minute mark of the video.

Let’s start with some of Mr. Carvin’s remarks, which begin just after the 58-minute mark of the video.

Carvin first pledged allegience to the 7th Amendment, then denied that policies such as pre-emption and the use of forced arbitration clauses in consumer contracts have anything to do with the right to a jury trial for civil suits. “Circumstances have changed… this is really a policy debate and things have dramatically changed.” So that was his bridge comment from a short affirmation of the basic right to his “explanation” of what he called “entirely separate questions” which have “nothing to do with the right to have a jury.” That sounds a lot like the excuses used for decades by the Beltway gun control elitists to justify infringement on our rights enumerated in the 2d Amendment – “Well, we support the 2d Amendment but things have changed since the Revolution, and we can’t have unlimited rights to carry guns all over the place!” The people of the United States didn’t agree with Beltway legal elitists then, and ultimately neither the Supreme Court.

Carvin then termed the medical device pre-emption exemplified in Riegel as “entirely a debate about the Supremacy Clause, when and under what circumstances federal law trumps state law – state administrative agencies, state others, state decision-making, including juries – it has nothing to do with, whether or not, for the sphere of law left to the states, whether or not those will be adjudicated by juries or by courts… it really has nothing to do with it…” (referring to the 7th Amendment).

For those readers not expert in Constitutional law, the “Supremacy Clause” is in Article VI, Clause 2 of the Constitution, and begins with, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…” (Emphasis mine.) It basically stands for the proposition that federal law trumps state law on the same subject.

Roger Pilon then joined the discussion on preemption, supported the Commerce Clause over the 7th and 10th Amendments, and added a red hearing about federal vs state regulation of drugs (starting at about the 1:29:50 mark on the tape). “For Mike Carvin, I think you’re absolutely right on your points about pre-emption, this is not a 7th Amendment issue… if the Commerce Clause was meant for anything, it was meant to ensure the free flow of goods and services among the states, and jury trials can really make a mess of that if pharmaceutical companies, for example, have to have 50 different labels for warnings on their medications.”

But there is no doubt that the Riegel decision resulted in the summary dismissal of lawsuits filed by hundreds of victims of defective medical devices. The companies cited the Riegel decision in their Motions to Dismiss and judges agreed with them. The “supremacy” of federal law trumped the right to a civil jury trial for the victims.

Think about the sweeping nature of the Constitutional principles enunciated by Michael Carvin and Roger Pilon: The Supremacy Clause and the Commerce Clause trump the 7th and 10th Amendments, two key components of the Bill of Rights. I can think of no better definition of “dictatorship” in Constitutional law than, “The Supremacy Clause trumps the Bill of Rights.” The Bill of Rights was drafted precisely as a check on the federal government’s powers. The Bill of Rights should limit ALL clauses of the Constitution which grant power to the federal government, or it limits none of those clauses.

The Founders realized soon after the ratification of the Constitution that the the powers granted to the federal government had to be bound and limited by an express Bill of Rights, especially with an amendment that protected states’ rights. I commend to readers the Tenth Amendment Center’s excellent summary of the debate over the Supremacy Clause. One of the two men who are considered the “Fathers of the Bill of Rights,” George Mason, refused to sign the Constitution precisely because the powers enumerated to the federal government were not limited by an express statement prtecting of individual and states’ rights. In his Objections to the Proposed Federal Constitution, published in June, 1788, Mason wrote in his first sentence, “There is no Declaration of Rights, and the Laws of the general Government being paramount to the Laws & Constitutions of the several States, the Declarations of Rights in the separate States are no Security. Nor are the People secured even in the Enjoyment of the Benefits of the common Law.” He then added more details of his objections to the Constitution.

And near the end of his Objections, George Mason pinpointed the limitation that the country needed to impose on the Supremacy Clause: “Under their own Construction of the general Clause, at the End of the enumerated Powers, the Congress may grant Monopolies in Trade & Commerce, constitute new Crimes, inflict unusual and severe Punishments, & extend their Powers as far as they shall think proper; so that the state Legislatures have no Security for their Powers now presumed to remain to them, or the People for their Rights.” Mason predicted, 222 years ago, that Washington legal elitists would grant supremacy in federal law over states’ rights and individual rights, unless those unalienable rights were guaranteed in writing and in law.

The Carvin-Pilon points echo the prevailing wisdom among proponents of federal preemption and among a majority of the current Supreme Court. In reading commentaries on the pre-emption issue written in recent years by Roger Pilon, a leading corporate defense attorney, and two attorneys who have argued for pre-emption several times before the Supreme Court, you read the same points: Pre-emption is all about the primacy in Constitutional law of the Supremacy Clause over states’ rights enumerated in the 10th Amendment, and the right to a jury trial enumerated in the 7th Amendment is ignored. The two attorneys, as follows, noted their satisfaction at the lack of attention to the Constitutional issues in recent Supreme Court pro-pre-emption decisions:

A significant feature of this term’s preemption cases is that rather than explicitly turning on sweeping philosophical debates about the merits of federal power versus federalism (sometimes embodied in presumptions about preemption or wading into administrative law battles about the degree of deference due federal agencies, many opinions hewed closely to the text of the federal statute, with a practical nod to the federal interests at stake in the overall federal scheme relating to that subject matter. Critics of judicial overreaching can take some comfort in this approach for interpretations that more closely follow the statutory text tend to give the political branches greater control.

Re-read that last sentence again slowly and note the authors’ “comfort” over the “greater control” granted to “political branches” over our lives. Beltway legal elitists prefer that federal bureaucrats make the final decision over the safety of implanted medical devices or financial services, with no recourse to a local jury for a defective product or fraudulent action by a financial institution. They can then influence the federal regulator one way or another without fear that the people of this country will hold anyone accountable.

Not once, in any commentary I’ve mentioned in this post, does any of these Washington-based legal experts and attorneys consider that the pre-emption of state statutory law by federal statutory law also infringes on an unalienable right protected in American constitutional and British common law for almost 800 years, the right to a civil jury trial. It is established law, accepted like any ordinary statement of fact, that the Supremacy Clause, and probably the Commerce Clause also, trump the 7th and 10th Amendments. The 7th Amendment is never even mentioned in any of the linked documents – it is thrown into the ashheap of history. After so many years of political war against the 7th Amendment, we see Beltway elitists cavalierly waving away our Constitutional history and our God-given rights in the name of federal supremacy and commerce. I’m astonished that the Cato Institute, which splashes its love of “Individual Liberty” over its homepage, so readily dismisses the right that James Madison called “as essential to secure the liberty of the people as any one of the pre-existent rights of nature.” It’s as if George Mason never wrote his warning about the dangers of the Supremacy Clause.

Tea Party activists, Constitutional conservatives, and 7th and 10th Amendment champions will face enormous difficulties in overturning years of established legal precedent to ensure the primacy of the 7th and 10th Amendments. NONE of the iconic conservative Justices of the Supreme Court is on record supporting states’ rights over the power already granted to federal bureaucracies by the business community and most of the “conservative” legal elite in Washington. The forces fighting for more Washington control over our lives while hiding behind the “conservative” label are rich, powerful, ensconced in high positions, and will not surrender without the people of this country demanding our unalienable rights.

Obamas First Budget Director Wants To Play Dictator

Peter Orszag, President Obama’s first director of the Office of Management and Budget, was one of the key figures in the enactment of ObamaCare, with its unconstitutional individual mandate and new government bureaucracy designed to order doctors to not cure us as they see fit. He must love the idea of sitting behind the Big Desk himself, signing off sweeping Executive Orders at a rapid-fire place, ordering Americans to do this and not do that. How else do you explain his bizarre penchant for writing that the panacea for the messiness of democracy is… less democracy? He wrote exactly this in an article titled, Too Much of a Good Thing for The New Republic:

To solve the serious problems facing our country, we need to minimize the harm from legislative inertia by relying more on automatic policies and depoliticized commissions for certain policy decisions. In other words, radical as it sounds, we need to counter the gridlock of our political institutions by making them a bit less democratic… But we need to confront the fact that a polarized, gridlocked government is doing real harm to our country. And we have to find some way around it.

Orszag attributes this polarization to the common, average American who has decided to not trust the mainstream media, and becomes “more radical” when meeting people “with similar opinions.” And it’s not the fault of “the elites,” because according to some of his favorite political scientists, “polarization is not primarily an elite-driven phenomenon… Polarized politics are partly here, so to speak, by popular demand.” No, the hatred for ObamaCare out there in fly-over land isn’t Orszag’s fault, it’s just us “little people” who don’t grasp the genius of all this “managed” health care.

Orszag is yet another ELITIST who blames AMERICANS for our political disagreements. He hides his hatred for Tea Partiers who revolt with his arrogant disdain for constitutional democracy behind the utterances of some equally arrogant, poli-sci psycho-babblers. During the Reagan years, we called people like this “Blame America Firsters.”

And Orszag’s prescription for ripping up our God-given rights and the Founding Fathers’ vision of limited government? Hold on to your seat:

To solve the serious problems facing our country, we need to minimize the harm from legislative inertia by relying more on automatic policies and depoliticized commissions for certain policy decisions… we need to jettison the Civics 101 fairy tale about pure representative democracy and instead begin to build a new set of rules and institutions that would make legislative inertia less detrimental to our nation’s long-term health

Yeah, take it out of our hands, and build some bureaucratic dictatorial mechanisms. He wants “automatic stabilizers,” like a progressive tax system and more unemployment insurance; and “more backup rules,” like automatic spending triggers” when Congress doesn’t do its job and pass appropriations bills on time (and note that the GOP House has been doing its job this year). Classic high-taxing big government by fiat.

And we need more “independent institutions” – you know, independent of the PEOPLE who would be ordered to do something – like that ObamaCare bureaucracy he created to dictate our health care decisions. And what about accountability to us? He sweeps that away by quoting another poli-sci “expert” who analogizes the New Bureaucratic Order to the unaccountability of Supreme Court Justices who decided on their own to legalize abortion. And we’re supposed to accept MORE of that?!

Trashing the Constitution and Bill of Rights is a regular practice for Peter Orszag. Not only does he want Uncle Sammy to decide which health care we can receive and pay form and which we cannot, he wants to dictate which medical malpractice lawsuits we can file, and thus take over entire state court systems. He wrote an op-ed last year in the New York Times in which he wrote, “Lawmakers missed an important opportunity to shield from malpractice liability any doctors who followed evidence-based guidelines in treating their patients.” Tort reform proponents slobbered all over it, trumpeting the Obama Administration’s “conversion” to their hope for new federal powers over local juries, local judges, and local health care decisions.

Those fans of Orszag’s tort reform proposal forgot, or purposefully ignored, the common thread between his ObamaCare and his medmal lawsuit limits: It would be the ORSZAGS of America who would make all the key decisions in both cases! The Orszag Elitists sitting in Washington will decide who gets the health care through ObamaCare, and the Orszag Elitists would also decide which “evidence-based guidelines” would be imposed to immunize doctors from their deadly negligence. Both are defended in lofty legalese under the Commerce Clause of the Article I of the Constitution, but patriots should know better.

Both ObamaCare and federal medical malpractice bills are based on the lust for federal power to override our decisions, made in the course of everyday life, including the judgment of twelve common, average Americans sitting in a jury box. When those decisions are made in the marbled halls of Washington, the lobbyists for the most powerful can sway a Congress, an Executive Branch, and a bureaucracy, and the people be damned.

Our Founding Fathers knew this and designed a federal government with limited enumerated powers precisely to avoid the Orszag Elitists from running our lives through ObamaCare or federal tort reform. This year, five conservative, anti-ObamaCare legal experts and two other experts who make a living criticizing trial lawyers agree that a federal medical malpractice law lies outside constitutional boundaries and is an unconstitutional violation of states’ and individual rights.

Peter Orszag hasn’t considered any of that and couldn’t care less. He loves to play The Man Behind the Curtain, spinning the dials and twisting the institutions of American life. Our basic rights and our authority to run our own government are “harming Washington’s ability to do the basic, necessary work of governing” and should be plowed under.

Remember the common danger between Orszag’s ObamaCare and Orszag’s tort reform: that lust for federal power.

More From Rob Natelson on Limits to Federal Power Over State Law

Over the course of the year, I’ve quoted constitutional scholar Rob Natelson of the Tea Party-side Independence Institute numerous times, for his clear writings condemning a federal bill to limit damages awarded in medical malpractice and other health care-related lawsuits. He continues to analyze the original writings of the Founding Fathers to determine their intentions for the scope and shape of the powers enumerated to the federal government in the Constitution.

Writing recently on the pages of the Tenth Amendment Center, Natelson wrote an article titled, “The Greatly Misunderstood Chief Justice John Marshall.” In it he discussed the twisting of Marshall’s legacy by historians to justify judicial activism. Included in the discussion is an analysis of Marshall’s rulings in key cases such as McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824), the case often cited for an expansive view of the Commerce Clause by proponents of both ObamaCare and a federal tort reform bill to override state court systems. Natelson describes the actual intention of Marshall’s rulings in those two cases:

Marshall’s treatment of the Necessary and Proper Clause in McCulloch v. Maryland is widely misunderstood by people who (A) don’t know the law of the time, (B) haven’t read the entire opinion, and/or © don’t know that two of the words Marshall used–“convenient” and “appropriate”– had narrower meanings in his time than they have today. Marshall himself explained the decision in a subsequent series of op-eds, where he acknowledged that the Necessary and Proper Clause is not a grant of power at all, but an interpretive guide.

Gibbons v. Odgen is often appealed to, as Justice Jackson did, for a very broad reading of the “commerce” component of the Necessary and Proper Clause. Under this reading, the Necessary and Proper Clause allows Congress to regulate any economic activity “substantially affecting” interstate commerce: agriculture, mining, manufacturing, heath care, insurance, medical marijuana–in fact, the entire economy.

However, Gibbons did not even mention the Necessary and Proper Clause. The primary holding of Gibbons was that navigation was within the prevailing legal definition of “commerce” for constitutional purposes–a decision that, under the original understanding of the Constitution, was clearly correct. Some of the Court’s dicta (extraneous language) added that in some circumstances commerce (including navigation) within state boundaries might be so tied up with interstate commerce that Congress could regulate it as well. But when Marshall addressed other aspects of the economy, it was to say that they were outside of Congress’s power. He specifically mentioned “health laws of every description” as being reserved exclusively to the states.

So those who use Gibbons to argue for the constitutionality of federal control of manufacturing, agriculture, land use, or health care are twisting some of Marshall’s words and omitting others.

In other words, the pro-ObamaCare forces and the pro-tort reform causes make the same error for the same reasons. In both cases, the result of victory in each case would be the exercise of excessive federal power, to the detriment of individual rights and the rights of individual states to regulate and manage the daily activities of the citizenry.

Americans are fortunate to have someone like Rob Natelson who has the ability and time to dig into the details of the foundational documents of our nation and educate us on the limits on federal power as intended by the Founders.

More FACTS About Texas Law Limiting Medical Malpractice Lawsuits

On July 27, I wrote for the third time about the real facts on the severe limits imposed in Texas on medical malpractice lawsuits. This week, Terry Lowry, host of the nationally syndicated What’s Up radio program, interviewed Alex Winslow, Executive Director of Texas Watch, about the results of the virtual elimination of those lawsuits through a constitutional amendment.

Mr. Winslow discussed the promise made to voters in Texas in 2003 that individual and overall health care costs would be reduced as a result of the limits in medmal lawsuits. But state and family costs (premiums and out-of-pocket costs) have risen and the state’s cost of health care is rising faster than national average, the exact opposite of what was promised. Texans were promised that giving away their right to hold wrongdoers responsible in a civil jury trial would result in lower costs.

Texans were also promised that that the quality and access to care would improve, and by every measure those promises have also been broken. The access to health care – the number of doctors – has not increased at all in rural and poor areas, such as in the Rio Grande Valley. The AMA still ranks Texas in the mid-40s in the number of physicians per capita, so the influx of doctors in Texas hasn’t kept up with the increase in state population. Meanwhile, according to Mr. Winslow, the Texas Medical Board, which is supposed to sanction bad doctors, is neither acting more quickly nor sufficiently sanctioning the small percentage of dangerous doctors in Texas. For instance, the TMA doesn’t run background checks on doctors moving from another state; a doctor practicing in Corpus Christi apparently left Minnesota in a hurry after leaving a trail of medmal claims.

You can listen to the first segment of the interview here, the second segment here, and the third segment here.

Not Leaving a Comment on this Stupid Blog

I read the stat logs (oof on me, throw that on the List right quick). I know how many of you there are out there. Look, here’s a dude on here just now from Raleigh, North Carolina who spent 5 mins 25 secs reading the List. Wilkes Barre, Pennsylvania, represent! Woh, wait a minute. I just realized why I recognize that town. It’s where I send my check to Sallie Mae every other month or so give or take a month or two. What sort of special bureaucratic hell have you guys get set up down there? Any chance you could, I don’t know, disappear off the face of the earth? Would consider that a total solid. Thanks in advance!

Let’s see… going down the list from today’s readers here… Tallahassee! Um, none taken on that last Florida post. Thanks for stopping in! We love Florida, for real. Except for every square inch of it we’ve been through. And also the other places we hear about in the news.

What else? London, United Kingdom (Learn how to tip you cheap pricks. Sorry, cheap cunts.); Stockport, United Kingdom; Alameda, California; Santa Cruz, New Mexico (I thought that place was just a made up state for the movies and for elections to get racists fired up at the polls, no?); Redmond, Washington; Wellington, New Zealand; Mannheim, Baden-wurttemberg, Germany (Love you miserable ill-humored stone-faced bitches over there, but you’re going on the List really fucking soon jsyk); Royal Oak, Michigan (are there any jokes about Michigan? What’s the point really, right? Be like making fun of sand or, like, a piece of bread? A sandy piece of bread? Do they even have sand there? Someone should probably look into this); Village Of Nagog Woods, Massachusetts… Los…

Wait a second. Village of Nagog Woods? That’s the fakest sounding town name I’ve ever heard in my life. What sort of happy little people frolic up yonder? Have you human like dwellings? How faired this moon’s crop good neighbor?

Actually, never mind cause I just found an entry from Stockton-on-tees, United Kingdom. Is that an ancient fiefdom or a white NBA point guard themed t-shirt company? Calling bullshit on that town right now. Nice try though.

Anyway, aside from a snooze-inducing geography lesson, the point here is that we all need to come together and share the special thing we have in common: we hate each other. If there’s one thing that people from around the world can agree on it’s that everyone else sucks. But, you know, in different ways.

On a related note, a suspiciously high number of people find their way to the List by doing a Google search for prison+rape+jokes. Um…

Fireworks are fucking stupid holiday reruns

Holidays are for food comas, and for me to re-post holiday themed list entries every year until it gets old.Check out this post from last 4th of July about all the amazing American shit you should be buying this week unless you hate your country, pretty sure it all still applies.

It’s kind of hard to capture in words the exact mix of solemn reverence and ass-kicking that goes into the 4th of July, so until I can get a picture up of my new tattoo of Ronald Reagan skateboarding over the Berlin Wall you’ll have to take my word for it. It’s kind of like an awesome blend of going out for drinks for some dude you kind of know’s birthday, 9/11 and the time Luke Skywalker blew up the Death Star all rolled into one. Only with a lot more hot dogs on the grill.

And what better way to commemorate our American exceptionalism than by pretend-bombing our cities. Nothing like some just kidding explosions all across the sky to set the patriotic mood, right?

Personally, I’m hoping they do that one firework routine they have where it looks like a flaming flower in the sky. That’s kind of like my jam. Yeah, I know they’ve been doing the same one since Chinese George Washington invented fireworks 10,000 years ago, but you stick with the classics, right? You can’t improve on perfect.

They invented boning and barbeque back then too, and we still haven’t managed to update those things yet either. Unless you count bukake and potato salad. Which, when you think about it, is a pretty good way to sum up the 4th of July in general. Potato salad bukake. 

Half-Assed Costumes are bumming me out HOLIDAY SPECIAL CLASSICZ

But even worse than that is the half-assed Halloween guy rocking some last-minute high concept meta costume that he has to explain to everyone at the party. (Going to a party). You can’t just strap a cell phone on your dad jeans and walk around all night looking self-satisfied and say your costume is a Baby Boomer. You can’t wear your waiter apron and walk around asking anyone if you can get them another drink and say you’re going as a liberal arts major.

There’s a pretty simple rule at work here: If you don’t want to do something, don’t do it. It just makes you look like you caved in to peer pressure at the last second and decided maybe your firm stand against dressing up isn’t so bad ass after all. Your whimsical Target employee name tag and shopping bag ensemble don’t make you look like a devil-may-care rogue deigning to play along with the proles on their silly holiday, you look like this guy I sat next to at a wedding recently rocking a Pittsburgh Steelers tie. You dressed up in order to say (to some invisible panel of judges who float through the clouds) that you dressed up, but you didn’t really dress up. In fact you look even worse than if you hadn’t done anything in the first place. Same idea behind the wrinkly khakis and blue oxford you wear to your business casual office. That’s the half-assed costume of life. The one where you show up to work every day pretending to be a dude who isn’t counting the hours until the sweet, merciful release of the big sleep.

Actually that’s a pretty good costume idea: a dead guy. I’ve got a gun you can borrow if you need one.

*Because people who read comic books and play video games are nerds amirite?

Asking About My Lunch While Im Eating It

Asking About My Lunch While I’m Eating It

Yeah, I know this here soup and half sandwich combo is incredibly exotic, and a real conversation piece, and I know it probably catches you off guard when I’m eating it at 12:30PM, but can you please refrain from asking me about my lunch when I’m in the process of eating it, because it gives me this strange impulse to throw my beef barley soup in your face, and the reasonable side of me knows that this would be impolite. And it’s really not so much the question itself as it is the peering that comes along with it. Like, stretching your neck up high so you can look into my soup container is completely unnecessary. So what started off as a pilgrimage to my cube to explain why you fucked up the TPS report (again) turned into a spectacular lunch show and tell. I know, I know, the sight of someone eating lunch at her desk has a tendency to stop coworkers dead in their tracks, but let’s move along people, there’s nothing to see here.

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Stealing content online makes you a brave freedom fighter

Whether it’s a mortgage on a house, a brand new car, season three of Friday Night Lights or that thirteenth beer, if I don’t have the money, I somehow pull my act together and move on empty handed. Why? Because I’m not an infantile On Demand omnivore incapable of satiating my demand for instant gratification. (Plus I need to save my money for gambling debts.)

No one cares about your half ass futuristic Robin Hood with a Mac book routine pal. We saw Fight Club too, yet somehow we managed to resist rolling that horseshit into a life of self-satisfied petty theft. You’re not some freedom fighter standing up to the corporate overlords every time you search for Family Guy episodes on bit torrent, you’re just an a-hole who’s too cheap to shell out a few bucks for the things he wants, and too greedy to not steal shit you will never, ever possibly look at twice. Homer Simpson with his hand stuck in the internet candy machine over here.

You know who else has a story about why the dirt they did wasn’t really illegal too? Every dude down at the courthouse.

Not that it’s wrong just because it’s illegal, mind you. It’s wrong because you suck.

Eating Lunch At Your Desk

Since I’m not qualified for any jobs other than folksy observational humorist on the internet (penis jokes) and underwear model, I haven’t worked in an office in like ten years. So it’s a little hard for me to relate to this bit. First of all, people still eat lunch? That is so cute! Anyhoooo, friend of the List debbiedavissq is fucking pissed at you guys,  so that’s good enough for me.

Quoth deborah:

Hey you, over there, shoveling that microwaved lean cuisine “food” into your face. You can’t take a ten minute break to eat your lunch away from your desk? Oh I get it, you are way busier than the rest of us. Us lazies need a few minutes to think about something other than how our jobs are crushing our souls. I know you are passionate about what you do, but guess what, your job is entering numbers into a spreadsheet and discovering the eccentricities that exist within Microsoft Office.  It won’t kill ya to take a knee for moment.

I get it, you want the boss to think that you are the hardest working SOB ever to step foot into this special office space.  You think that if you look like you are working the hardest it will be you who receives that long awaited promotion. Well you know what? It can be a little difficult to taste, chew and swallow while typing away on your computer. I have tried it, and now there are crumbs all over the place. Don’t you know that a messy cube leads to less productivity? I read that on the internet during one of my ten hourly breaks. So clean that mess up dude and get outside for five minutes, you are actually fucking yourself (and not in the good way).

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9 Ways to Make Space in Your Grief for Some Holiday Joy

Tears & Tinsel: 9 Ways to Make Space in Your Grief for Some Holiday Joy

YARDLEY, Pa. — If you’ve recently lost a loved one — and even if it happened not so recently — the holidays can be heart-wrenching. The stark contrast between glowing lights and the darkness of your sorrow is difficult to take. Frankly, you’d like to crawl under the covers and hide until Jan. 2.

But according to Susan Apollon, an intuitive psychologist who works with grieving people, it is possible to find some pleasure — even a touch of joy — in the holiday season.

“The holidays are painful if someone you love has recently died, or if you’re going through a divorce, or even if your child has moved away,” says Apollon, author of Touched by the Extraordinary: An Intuitive Psychologist Shares Insights, Lessons, and True Stories of Spirit and Love to Transform and Heal the Soul (Matters of the Soul, 2005, ISBN: 0-9754036-4-8, $19.95).

“Special days remind us of our loss,” Apollon adds. “Family is supposed to be together during the holidays, and when things aren’t the way they’re ‘supposed’ to be, of course it’s distressing.

“But you can get through the holidays,” she promises. “In fact, even if your grief is very fresh, you can create a space to celebrate in your own way.”

Here are 9 hints for making space in your grief for some holiday joy:

1. First, give yourself permission to cry. Apollon’s mantra on dealing with grief is “face it, embrace it, and replace it.” In other words, the only way to “get over” sadness is to experience it.

“If you need to cry, cry, even if you’re at a party and have to leave the room,” says Apollon. “You might even set aside an evening to get in touch with your grief. Fix the cocoa you used to drink with your mother or go through your photo albums. It’s healthier to feel the sadness and loss than to detach yourself from it. It’s right and normal to grieve; just don’t make it the dominant part of who you are.”

2. It’s OK to break tradition.It’s also OK to say no. You know your own limitations, says Apollon. If you simply can’t face hosting your annual holiday feast, complete with dozens of relatives, don’t try to soldier through it for the sake of your guests. People will understand.

In fact, it’s okay to leave town altogether. “Some people find it helpful to get away completely, to somewhere that doesn’t remind them of holidays past,” notes Apollon. “You might consider a tropical vacation, or you might take the time to visit a friend across the country. Doing something completely different can be a good coping mechanism, especially for that first tough year.”

3. Consciously attach a new meaning to the holidays. Holidays are difficult because they remind you that someone special to you — someone who should be there — is gone. In your mind, your daughter (or mother or husband or friend) is Thanksgiving or Christmas or Hanukkah. Without that person, family dinners and parties just don’t have the same meaning.

That’s why Apollon suggests you find a new way to connect with the person you’ve lost. “Buy the gifts that you would be giving to your lost loved one and donate them to a charity or volunteer in a hospital or soup kitchen,” says Apollon. “If you consciously guide yourself to attach a new meaning, one that still involves your lost loved one, you will find that you are able to create a new beginning for your holiday celebrations with that person.”

4. Honor your lost loved one in a way that feels comfortable to you. It’s usually better to acknowledge your loss than to pretend that nothing has changed. You might light a special candle for your loved one, hang a tree ornament in his memory, or bring out a favorite photo.

“Some clients actually set a place at the table for their missing family member,” says Apollon. “I’ve even had a few tell me they received a ‘message’ of gratitude from their loved one for acknowledging him or her! On the other hand, some people discover that the empty chair is more upsetting than comforting. Do what feels right to you.”

5. Invite your loved one to be a part of your holiday experience. Apollon means this literally, not figuratively. She suggests that you talk with your lost loved one and share your feelings with him throughout the holidays. Ask for guidance and help from the person. He will hear you and may even send a sign — perhaps a whiff of his cologne or a smoky image in a photograph or a synchronistic moment — so pay attention.

“There are many ways to communicate with someone who isn’t with us in the physical sense,” says Apollon. “Journaling your feelings to the person can help you release your pain and provide a greater sense of clarity. I often encourage my clients to verbally invite the person they are missing to be with them and to ask them for signs.

“However, don’t anxiously wait around for the signs,” she adds. “Ask and then let it go. Allow whatever happens to unfold naturally.”

6. If you don’t want to go all-out, do the holidays in a small way. You don’t have to decorate lavishly or bake up your usual six dozen secret-family-recipe homemade cookies to celebrate the holidays. Instead, put up a tiny tree and pop a pack of pre-made cookies in the oven.

“Recognizing the holidays in some small way can be healing,” says Apollon. “It’s a way of accepting the fact that life goes on and of giving yourself permission to enjoy small pleasures.”

Interestingly, says Apollon, some people who have passed on might want their families to adhere to holiday traditions. One of her clients dramatically scaled down holiday festivities the year her son died, setting a small, decorated tree on the table instead of putting up the usual big, lavishly appointed one.

“The son let her know right away that he wasn’t happy with it,” says Apollon. “For three mornings in a row, she woke up to find all the ornaments mysteriously removed from the tree and set neatly off to the side. Finally, she got the picture!

“Don’t assume you need to minimize the holidays as an expression of grief — your loved one really is present, and he may very well want you to keep things the way they’re ‘supposed’ to be.”

7. On the other hand, if you absolutely can’t find any holiday joy, go find some other kind. Maybe you’re too depressed or too angry with God to celebrate Christmas or Hanukkah even in a tiny way. That’s OK, says Apollon. But don’t deprive yourself of all joy. Go to a movie. Meet a friend for coffee. Take a long nature hike with your beloved dog.

“The law of attraction says that if you want positive experiences, you need to do something that feels good,” Apollon points out. “Make it a priority to do something that brings pleasure, even if it’s not holiday-related.”

8. Learn to be conscious of the moment. Practice being fully present in the now; it truly is where joy resides. “Every day of your life, every moment of your life, you can choose joy or not,” Apollon reflects. “Of course, no one feels joyful all the time, but when we learn to live in the present — to really pay attention to how food tastes or what a child’s laugh sounds like or how the snowflakes look against the edge of the woods — we can savor moments of delight even in a time of grief.”

9. Realize that miracles really do happen at the holidays. Here’s the thing about the holidays, says Apollon: They really are magic. You knew this as a child but might have forgotten it. But spiritual occasions like holidays allow us to step outside the box we live in most of the time and let miracles in.

“Paradoxical as it sounds, grief and holidays are a lot alike,” she reflects. “They both help us detach from trivial things and focus on what’s important, what’s real. Open your mind and heart this year and see what happens. Maybe you’ll feel a sense of connection with your loved one who passed on, or maybe you’ll feel joy for the first time since your loss. Either one might qualify as a miracle.”

Remember, says Apollon, that the holidays won’t always be such a struggle. If you work through your grief instead of repressing it, you’ll find joy again.

“The holidays will never be the same again. That is true,” she says. “But life is change, by its very nature. Little by little you will form a new identity and learn to connect with your lost loved one in a different way. You’ll form new memories and new traditions.

“Grieving well can lead to spiritual growth, which means that life itself can become richer and fuller after a profound loss. You’ll never forget the person you lost, but you will find joy — even holiday joy — again.”


About the Author

For close to 20 years, Susan Apollon has worked as a psychotherapist, psychologist and healer, treating children and adults who are traumatized, diagnosed with cancer or other life-threatening illnesses, dealing with death and dying, and those who are grieving. She brings to her patients a gentle blend of warmth, compassion and wisdom gained from surviving her own illnesses and losses; her expertise and training as a wife, mom, teacher, psychologist, researcher, and student of energy, mind, and consciousness; and finally, her own intuitive development.

Coming from a family of physicians (father, brothers, aunts and uncles, and daughter, Rebecca), Susan’s intent is to heal (emotionally, mentally, physically and spiritually), but at the level of the soul– — and always with love and compassion. Focusing on the many blessings each of us has, she guides her patients to the recognition that we are here to live life in joy and peace (to be happy) and that the resources for this are within each of us.

“Intention is everything,” she often tells her patients. “With love, clear intent and choice, transformation, healing and, very often, spiritual awakening, become our reality. And when this occurs, everything feels wonderful.”

Among Susan’s most treasured blessings are her husband, best friend and partner, Warren, a practicing orthodontist in Langhorne, Pa., whom she has known and loved for more than 40 years, and her two grown children whom she respects, honors and adores — David, a management consultant, and Rebecca, an emergency room physician. She has been in private practice in Yardley, Pa., since 1991.

About the Book

Touched by the Extraordinary is available at bookstores nationwide and from major online booksellers. For more information, visit

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10 steps for your churchs protection

by Robert Lovret, CPA, CIA

By Robert Lovret, CPA, CIA

members of their own religious affiliation, ethnic group or nationality,
affinity fraud con artists are taking advantage of their status as members of
the group to solicit investments in fraudulent schemes. Affinity fraud is so
widespread, it is included in the California Department of Corporations’ listing
of the top 10 investment fraud scams.

A recent example of affinity fraud is the Baptist Foundation of Arizona (BFA).
Targeting the Christian community, the BFA sold over $530 million in investments
to more than 130 churches and 13,000 individuals. Now in bankruptcy, the BFA is
under civil and criminal investigation by the State of Arizona, and investors
will likely lose a significant portion of their money.

Your church can avoid being caught up in affinity fraud by implementing these
practical steps:

1. Be cautious if the promoter of an investment opportunity tries to
capitalize on connections or leadership within your church or denomination.

A common affinity fraud tactic is to lull the church into a misplaced trust by
first selling to a few prominent members. Then, using their names, the con
artist pitches the scam to the church itself.

2. Be suspicious of returns that sound too good to be true. Early and
high returns on investments may be indicative of a “Ponzi” scheme,
which involves the use of later investors’ money to pay earlier investors. These
early investors often become unsuspecting–but enthusiastic–promoters of the

3. Adopt a church investment policy. Include in the policy specific
investment objectives, such as safety and liquidity, and the criteria to be used
in evaluating potential investments. The policy should identify the level of
investment risk your church is willing to take. It may identify particular types
of investments as acceptable and specifically exclude others.

4. Always get an offer in writing. A legitimate promoter is always
willing to provide detailed written materials that include the nature of the
investment, the risks involved, financial statements and the procedures for
getting your money out.

5. Make sure you understand the investment. You should be able to
explain to anyone in your congregation how it works.

6. Don’t rush into making an investment decision. If the promoter is
requiring you to make a hasty decision, it is likely that the investment is a

7. Check out the promoter and the investment through your state or
provincial securities regulation agency.
You can find their address and
phone number in the government section of your phone book or on the Web page of
the North American Securities Administrators Association (
Your local Better Business Bureau may also have records of complaints about the

8. Think with your head and your heart. Promoters of religious
affinity frauds frequently cloak the investments with the mantle of “good
stewardship.” Make the effort to verify any claims made by the promoters
regarding their giving.

9. Ask for professional advice from a neutral expert. An accountant,
attorney or financial planner can help you evaluate the investment. Be wary of
any promoter who discourages you from doing this.

10. If you have been the victim of an affinity fraud, don’t give a break
to a swindler who hides behind religion.
Con artists recognize that the
close-knit nature of churches makes it less likely that a scam will be detected,
and that victims will be more likely to forgive one of their own. Don’t allow
others to be victimized by letting an investment con artist off the hook.

By exercising caution in all of your investments, you practice good
stewardship and protect your church. As Paul taught, “Test everything. Hold
on to the good” (1Thes5:21).

Robert Lovret, CPA, CIA, practices in Santa Ana, Calif. He can be reached
at (714) 750-3303 or via e-mail at [email protected]

A classic interiorexterior material option for ageless appeal

by Bob DeCampo

By Bob DeCampo

Although Bethel White granite has been used in many different
building applications over the last 100 years, it has most recently found itself
to be in demand for exterior as well as interior construction of churches. The
stunning white appearance of this material, which is only quarried in the small
village of Bethel, Vt., by the Rock of Ages Corporation, has led to it being
specified in a majority of projects by the Latter- Day Saints of the Mormon
Church. Not surprisingly, the founder of the Mormons, Joseph Smith, was born in
the neighboring community of South Royalton, Vt. Even with this obvious
connection, the stone has come to earn its own reputation based on its quality,
durability and physical appearance.

Granite was first extracted from the Bethel quarry in the late 1700s for use
as millstones. Commercial quarrying of Bethel White for use as a building
material started around 1900, when two quarry companies–the E.B. Ellis Granite
Co. and the Woodbury Granite Co.–commenced operations on the site. In 1905, a
rail spur was added from the quarry to the main line, which allowed commercial
growth of the business. During the period immediately following construction of
the line, the quarry supplied granite for several major buildings including
Union Station (1907) and the U.S. Post Office (1910), both in Washington D.C.
Rock of Ages Corporation purchased the quarry from the Woodbury Granite Co. in
1958, but not before Bethel White granite had been supplied to produce the
Smithsonian Museum of Natural History as well as many banks, libraries and state
capitols throughout the country.

Throughout the 1960s and ’70s, stone fell out of favor as a building material
and eventually production at the quarry dwindled to minimal levels. During this
time, the quarry operated only a few months a year. In the early 1980s, the
material was re-discovered by the European stone industry and exports of Bethel
White blocks gradually increased. During this time until the early ’90s, almost
90% of the material from the quarry was exported to Europe for building
purposes. In 1986, Bethel White was specified for the construction of the Mormon
Chapel in Friedrichdorf, Germany, which became the stone’s first application for
use in a religious structure. In 1991, the famous architect I.M. Pei selected
Bethel White for the construction of the Stone Tower project, another major
religious building located in Kyoto, Japan. Throughout the ’90s, Bethel White
has been specified for the construction of numerous temples and meeting houses.
The largest and most famous of these is the Bountiful Temple just outside of
Salt Lake City, Utah.

When deciding on stone as a construction material for a major project, the
church needs to take several factors into consideration. Of course every project
has budget concerns and constraints, but the reality of using granite, which may
have a higher up-front cost then other less expensive materials like brick or
wood, should mean lower maintenance and repair costs in later years. Today’s
technology allows for thinner pieces of granite or veneers to be hung on steel
framing instead of the large, heavy and thicker pieces used in early
construction with their thicker masonry joints that required maintenance and
replacement over time. By today’s construction methods, this approach results
initially in savings in the volume of granite required to complete the project,
plus a more structurally sound building. This fact, plus the durability and
beauty of granite, make a winning combination that saves money in the long run
while providing an outstanding building value. This is why it is extremely
important to select an architect with previous experience in designing stone
buildings. Work closely with the architect during the design stages and fill
them in on color shading and preferences. Then let them provide you with a range
of materials that fits this criteria.

It is also important to decide on a finish for the material selected, as
different finishes tend to make the stone appear lighter or darker in some
instances. For example, the finish of choice on most outside granite-clad
buildings these days is a thermal or flamed finish. This finish is achieved by
passing the slabs under an automatic torch system, which rapidly expands the
surface of the granite, causing it to spall away. This type of finish, while
rougher in appearance up close, tends to lighten the color of the stone and help
hide any unwanted defects that may naturally appear in the material. It is also
a very low-maintenance type of finish and quite rustic. If high-quality material
is used, and depending where the building is located, all that should be
required is a good pressure washing from time to time. Of course, larger cities
tend to have more airborne pollutants that can attach to any building surface,
not just granite.

A polished finish tends to darken the natural appearance of the granite,
making it important to select the installation location carefully. While this
type of finish is still used occasionally on exteriors, most polished work today
is found on the interior in the form of tiled floors, bathroom facilities and
various other applications, even altars. Granite is polished modernly these days
by using large automatic polishing machines. The slabs pass under multiple
polishing heads. Each head is equipped with abrasive bricks starting with a very
coarse abrasive brick followed by finer abrasive bricks until, finally, a
buffing brick is used to finish the process of closing the surface of the stone
and producing the mirror-like surface. Being a closed surface, the granite then
becomes less affected by airborne pollutants but also tends to hold moisture
longer. The result: after a lengthy rainstorm, the building with the flamed
finish and open surface will dry out and regain its natural appearance faster
than a building with a polished finish.

The other typical finish specified is a honed finish. Simply stated, this is
a duller version of the polished finish. The nice thing about these different
finishes is that they each give their own contrast to the same stone. So it is
possible to use a combination of finishes with the same or different materials
to establish an aesthetically pleasing visual contrast.

If you’ve decided your building will be clad in stone and you have some idea
about the different finishes available, then the logical next step is to select
the granite. There are as many colors of granite as there are colors of the
rainbow. Direct questions about the materials to your architect specifically in
regards to the American Standard of Testing Methods (ASTM) test results. The
ASTM sets guidelines for all building materials including granites. There are
strict ranges into which the granite must fall for approval. The architect
should be able to obtain these results from the quarrier who has tested its
granite in accordance with ASTM practices for such things as compressive
strength, flexural strength, water absorption and modulus of rupture.

Once narrowed down to a few granites, the architect should arrange to have
mock-ups made for inspection. These are designed to be representative of the
material as it would appear in a small section of the building. This gives you a
better example of the granite than just relying on a 12- by 12-inch sample. The
mock-up also acts as a control for the building, meaning that the material
supplied should match the mock-up as closely as possible. However, be realistic
because granite is a natural material; as such, it can and will vary slightly.
Understand that there is a certain acceptable range for the material and you
need to define this range from the beginning. This helps to eliminate
dissatisfaction or disputes after the stone has been placed on the building. The
mock-ups also give you a chance to see and feel the finish of the granite
firsthand. One word of advice, however: ask for building references. It is worth
the trip to inspect a building that was constructed with the same material
you’ll be using. Check the age of the building and look for signs of weathering.
How does the granite appear compared to the samples presented to you? This is
one of the most valuable things you can do when selecting the material that
will, realistically, last forever.

White granite has been said to have a calming effect over human nature and
seems to be ideally suited for religious buildings. Most of the greatest
churches in the world were fabricated with stone of some sort. It is a nice
feeling knowing that, as we enter the next millennium, we have built–and are
still building–more of these beautiful churches.

Robert J. Campo represents the Quarry Division of Rock of Ages
Corporation. For more information, visit

2006 State of the Nonprofit Industry Survey Results

2006 State of the Nonprofit Industry Survey Results

CHARLESTON, S.C. — Blackbaud has conducted its State of the Nonprofit Industry Survey annually for the past three years to gather and provide an overview of information that can help nonprofits better benchmark their operations. The 2006 survey focused on a series of timely issues critical to today’s nonprofits; it was structured to capture data in three main areas:

1. General operations (including staffing, budgets, and organizational challenges)

2. Use of the Internet

3. Accountability and stewardship

The survey was widely distributed throughout the non-profit community and directly to Blackbaud clients via industry newsletters and targeted emails. Seven hundred eighty-five respondents participated. The survey was distributed and administered online, so it is important to note this sampling bias.

Fifty survey respondents were from religious organizations, including ministries, churches, dioceses and other religiously focused nonprofits. Approximately 20% of these religious organizations have total annual revenues of less than $1 million, and almost two-thirds claim total revenues between $1 million and $10 million. This analysis provides a report about the results from religious organizations and comparisons with the more than 700 responses received from non-religious organizations.


General Operations

Religious organizations, like other nonprofits, report increases in budgets, staffing, and demand for services.

  • 69% report that demand for their organizations’ services increased from 2005 to 2006, and 6% reported a decrease (versus 72% reporting an increase and only 4% a decrease in the non-religious sector)
  • 44% expected their staffing level to increase from 2005 to 2006 (the same percentage as reported by the rest of the sector)
  • 57% said their budgets increased from 2005 to 2006 (vs. 66% for the rest of the sector)

In terms of functional areas, religious organizations are more likely to have paid employees who handle major gifts or planned giving than the remainder of the sector. They are less likely than other nonprofits to devote resources to endowments, marketing, and grants writing. A greater percentage of religious respondents reported having employees who work remotely.

  • ?? 90% have employees who handle major gifts (vs. 82% for remainder of sector)
  • 76% have employees who are in charge of planned giving (vs. 70%)
  • 60% have employees who work remotely (vs. 47%)

Religious nonprofits report that a larger portion of income comes from individual donations than other nonprofits report.

They are also likely to have fewer funding sources. Religious organizations are much more likely than other nonprofits to use recurring giving, online donations, and planned giving. They are less likely to focus on special events and product sales.

  • 79% use recurring giving (vs. 47% of non-religious respondents)
  • 80% accept online donations (vs. 59%)
  • 73% use planned giving methods (vs. 55%)

In terms of pressing issues for the non-profit sector as a whole, religious organizations rated accountability to donors much more highly than did non-religious respondents. The need to show impact and measure outcomes rated very highly as well, although not as highly as with the non-religious group.

  • 70% reported that accountability to donors is one of the most pressing issues facing the nonprofit sector (vs. 58% for other respondents)
  • 70% said that the need to show impact and measure outcomes is one of the most pressing issues (vs. 81%)

Use of the Internet

The Internet appears to be very important to religious nonprofits, with 94% saying that it is a critical tool in running their organizations. Even with the emphasis on the Internet, only 12% of religious respondents said their sites are very effective, indicating an opportunity for improvement.

Given the importance of individual donations, online fundraising is crucial for this group. They are much more likely to actively raise funds online than non-religious organizations. Religious groups receive a higher average gift from online (84% $50+) than offline (78% $50+), in contrast to non-religious respondents. Not surprisingly, the largest gifts are still made offline, which corresponds to the remainder of the market. Religious organizations rated middle-aged and high-income donors as more likely to donate online than did the other organizations.

Religious organizations primarily use their websites to educate the public about the mission, market the organization, and communicate with constituents. They are more likely than other nonprofits to use their websites to raise funds and create an online community.

  • 96% say online fundraising is very or somewhat important to their organization (vs. 87% of others)
  • 8% said online auctions are important (vs. 27%)
  • 38% said online polls/surveys are important (vs. 58%)
  • 68% said their web-sites are somewhat effective
  • 66% use their Web sites to raise funds (vs. 58%)
  • 32% use their Web sites to create an online community (vs. 26%)
  • 56% actively raise funds online (vs. 41%)
  • 63% said middle-aged donors are more likely to give online rather than offline (vs. 26%)
  • 37% said high-income donors are more likely to give online rather than offline (vs. 18%)

Accountability and Stewardship

All religious respondents say that donors trust that donations to their organizations will be spent appropriately, but 18% do not think the public trusts nonprofits in general. Although donors trust that donations will be spent appropriately, 38% are asking how donations are spent, which is a higher than the rest of the market at 31%.

More than 40% are seeing an increase in restricted gifts. Because religious organizations are less reliant on other funding sources such as government grants and foundation grants, they may be feeling more impact of restricted gifts. Of those that have noticed an increase in restricted gifts, 63% say they are having trouble getting funds for general operating purposes and 53% are specifically soliciting unrestricted gifts.

Religious organizations are similarly confident as rest of the market about adhering to donor intent, but a little less sure about the strength of their internal controls. They tend to be behind the rest of the sector in implementing audited financial statements, forming audit committees, and establishing whistle-blower procedures.

  • 18% of religious organizations do not think the public trusts nonprofits in general (same as non-religious group)
  • 38% indicate an increased demand from donors asking to be updated on how their contributions were spent (vs. 31%)
  • 43% are seeing an increase in restricted gifts (similar to rest of sector)
  • 64% are very confident in their organization’s internal controls (vs. 79%)
  • 87% have audited financial statements (vs. 95%)
  • 56% have formed an audit committee (vs. 75%)
  • 23% have whistle-blower procedures (47%)

To view the survey results in a downaload, printable PDF, log on to the Blackbaud website.

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Archdiocese Launches Child-Abuse Education Programs

CINCINNATI–The Roman Catholic Archdiocese of Cincinnati is starting child-abuse education programs for students, parents and teachers at its schools.

The archdiocese will pay the National Council on Child Abuse $50,000 over three years to develop the programs, according to The Associated Press. The programs will teach students to report abuse and help teachers recognize warning signs, church officials said.

“We think we can take a bad situation and do something positive with it,” said Eve Pearl, the council’s executive director. “We can use this as an opportunity to teach children how they can be safe.”

The program includes a parents’ workshop, three hours of teacher training, a half-hour discussion for elementary students and longer programs for older students.

“These programs are the cheapest, quickest, simplest step a diocese can take,” said David Clohessy, director of the Survivors Network for those Abused by Priests. “It’s sad that it takes a crisis of this magnitude in order to prod church officials to do such a simple, non-controversial program.”

Church officials said the program is not specifically designed to target abuse by clergy. The archdiocese has offered educational programs since at least 1993, when church officials approved their first Child Protection Decree.

“Prevention and education is part of the decree,” said Patricia Armstrong, the archdiocese’s assistant superintendent. “We were looking for ways to improve that.”

There are nearly 500,000 Catholics in the archdiocese, which includes 19 southwest Ohio counties. In 2001, 56,000 students were enrolled in the archdiocese’s 112 elementary and 22 high schools.

This article can be viewed online at

A Brighter Idea

A Brighter Idea
Retrofitting Your Existing System Cuts Costs, Gives More Light-Level Control

Want to improve your church lighting? Have multiple light levels at your disposal? Reduce your overall lighting costs? Then we’ve got news for you!

In the past, fluorescent lamps have not been amenable to much control, but all that has changed with Ambience, an eight-lamp fixture that regulates light levels at 0, 25, 50, 75 and 100 percent (full-on). Technically, the control is not dimming because this system powers each lamp pair in a simple “onoff ” function when the operator selects a desired light level.

Jim Loughrey, president of Link Lighting and Controls, maker of Ambience, says the net effect is an apparent gradual increase or decrease of light output as each percentage level is addressed. The Link lighting system also is “smart,” he says, because an onboard chip rotates powered lamp pairs at low light levels. This feature keeps lamp life uniform across the eight-lamp fixture.

Individual fixtures may be electronically linked together so that one part of the church may be at a different light level than another.

For example, the chancel area could be at 75 percent or 100 percent while the nave might be set at 25 percent or 50 percent during a sermon or other presentation. These levels can be reversed when the congregation needs to read hymnals. “It’s like getting a theatrical effect with a very efficient and inexpensive system,” Loughrey explains.

Control is made possible with a simple wall-mounted multi-button switch. The operator selects the desired light level percentage and pushes the corresponding button. The controller delivers the command to however many fixtures are on the control circuit, and the light levels are set until another level is selected.

Does this mean churches must abandon their existing fixtures to get control? No. But it does mean they ought to consider retrofitting existing fixtures to be “smarter” setups. “We often find very elegant fixtures that simply need a better and more efficient lighting method,” Loughrey says. “To that end, we can either retrofit existing fixtures or supply new ones to complement church decor.”

How Much Can You Really Save?

Savings depend on a number of variables. As Loughrey explains, if you currently run tungsten lights at full-on with no dimming, your power savings will be significant. “Tungsten lights deliver about 90 percent of their output in heat,” he says. “That leaves only 10 percent for light. Fluorescent lights, by contrast, consume only 20 percent of the power required by tungsten bulbs for the same light output.”

In laymen’s terms, Loughrey says a church can expect to cut lighting power costs by 50 percent, comparing fluorescent to tungsten. Factor in the control capability of the Ambience system, and the savings increase. Illumination also is greater with fluorescents. Evidence suggests a church will get three times the light when comparing tungsten with fluorescents at the same power input.

Pastor Richard H. Strait of Chapel Heights Church in Eau Claire, Wisc., and the Rev. Pam Hiscock of Cedarcrest Church in Bloomington, Minn., say their new lighting systems were well worth the investment. And, they add, their congregations seem to agree. Now worshippers can see their hymnals and on-screen projections all at once. Plus, lighting can be set for dramatic effect, time of day or other parameters. Both Strait and Hiscock say the power savings will help repay the churches’ investments, and the overall appearance of each facility is much brighter than in the dark nights of tungsten lighting.

If all this sounds too easy, try replacing your tungsten lighting with compact fluorescent lamps. Chances are, you’ll see the light.

For more information, call Link Lighting and Controls at 800.522.1196 or log on to