Category Archives: Politics

The end of Marbury v. Madison (as we know it)


The End of Marbury v. Madison (as we know it)

“There’s nothing to hold on to, when gravity fails you and every kiss enslaves you…” Graham Parker


Does President Trump have to divest his assets? Is he subject to the emoluments clause? Does he have to disclose his tax returns? If you answered yes to any of these questions I think you are in for a rude awakening.

Ask most Americans which branch has the ultimate power to interpret the Constitution and they will answer that it is the Judicial Branch. Some will even suggest that the issue was settled by Chief Justice John Marshall in the case of Marbury v. Madison decided in 1800. Well, if that was my answer on my Constitutional Law exam, I think Professor Schwartz would have given me partial credit. Maybe a C.

First, as I am wont to do, I will point out that Marbury v. Madison was decided by a slaveholder (Marshall) for the benefit of slaveholders (President Jefferson and his Secretary of State James Madison). In the waning days of his administration, President John Adams tried to appoint officials to various positions including William Marbury as a Justice of the Peace in Washington DC. The fact that slavery was permitted steps away from the corridors of power in Washington was considered a blight on the government by the fledgling antislavery movement. Presumably, a Justice of the Peace who had no allegiance to slaveholders could have curtailed that great injustice. Slaveholders resisted the appointments. Through some mumbo jumbo, Chief Justice Marshall ruled in favor of the slaveholders and denied the commission to William Marbury, allowing Jefferson and Madison to appoint their own Justice of the Peace, presumably one who would agree with their political ends. The idea of judicial review was born here, in the decision by Marshall. It was a byproduct of the decision; the end justifying a means.

The Constitution sets up three branches of government. It spells out the relationship between the branches. The President appoints the Supreme Court justices with the advise and consent of the Senate. The Congress can impeach the President. etc. Nowhere in the Constitution does it provide that the Supreme Court is the final arbiter in disputes between the branches or as to the “constitutionality” of a piece of legislation or executive action. Depending on your viewpoint it is either ultimately logical or totally illogical that the branch that is furthest away from the direct selection by the People has this ultimate power. In any event, I suggest that Marbury v. Madison and judicial review is not the settled law that many think it is. Perhaps it was just a self-serving power grab by one branch, subject to resistance by another.

So now President Trump faces a lawsuit which argues that he must divest his business holdings or he is in violation of the emoluments clause of the Constitution. It seems logical that as part of that lawsuit he will again be requested to turn over his tax returns. So what happens if he loses the case and then just says NO.

Such a response is not out of the question for this president. He can point to the Constitution and ask where it says that the Supreme Court has power over the executive branch. He can assert that the People have the ultimate power and the People elected him to do the job and don’t care about his business holdings. He can suggest that if Congress or the People don’t like him, their recourse is to impeach him. Despite musings to the contrary, this viewpoint is not without merit. Had I answered same to Professor Schwartz, I think I would have gotten an A.

As we ride through untested waters, I suggest that in a world where nothing is sacred, Marbury v. Madison may be the next ball to drop.

Justice Scalia is dead…wrong

Justice Scalia is Dead…Wrong

I know what freedom is. I live in a country where I can write those provocative words on the day of the funeral of Justice Scalia and other than hearing a few groans nothing will happen to me. To some degree I have Justice Scalia to thank for that, as well as others in his line in the history of America, many of whom I disagree with. But that does not mean that I buy into their notion of the Constitution. Most of them are wrong…dead wrong.

The Declaration of Independence and the Constitution were writing assignments, largely undertaken by slave holders. One task was to set up a government conceived in “liberty” where about one fifth of the population would be slaves without mentioning the word “slave” or “slavery”. Done. Neither document concerned itself with any rights of women, doing so without mentioning the word “woman”. In 1776, Abigail Adams wrote to her husband…””Remember that all men would be tyrants if they could”. I do not recall her receiving an invitation to the love fests we call the continental congress or the constitutional convention. As I have previously stated in this series, the men who wrote these documents had their own problems to solve, and their results did not benefit the situation of others in their midst.

My particular concern here is for the “originalists” like Justice Scalia and the many dark suited disciples who follow him, who worship the text of the founding documents. The Dred Scott decision was decided by an “originalist” too, one who held that no person of African descent could ever be a citizen United States. That Justice, Justice Taney, understood that the founders were dividers, not uniters. Justice Taney understood that the founding documents that many hold sacred purposely set up different rights for different classes of people. “Originalists” are honoring that tradition.

James Madison, a slave holder of course, thought he solved a problem by setting up the three/fifths compromise in the Constitution. How can a slave can be a person for the parts of the Constitution that benefit Virginia, but not for other parts that benefit the person? It was similar to the solution of Thomas Jefferson in speaking of liberty and rights while owning slaves and thereby destroying the meaning of those words. These two actually perpetrated a hoax onto an unsuspecting America, and we today must still deal with the remnants of their handiwork. The Declaration of Independence and Constitution are more than founding documents, they embrace political philosophies where words are deprived of their common meaning. Women still do not have rights to control their lives under the constitution. That is “originalist”.  There remain many in this country who although are not slaves, have no realistic opportunity to partake of the American Dream. That is “originalist”. The beautiful land and beautiful people of this country continue to be stifled by documents that were not set up to benefit them, but only to benefit others.  That is “originalist”. The original “originalists” set up a system that made their government difficult to change. Let us try. Let us today move past originalism. There has to be something better.

Today’s Lesson on the Constitution 2/18/2016

Today’s Lesson on the Constitution 2/18/2016

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted. (Justice Taney Opinion: Dred Scott v. Sanford, 60 US 393 (1856)).


After being out of work for a while I decided I would do what most out of work attorneys do…write a book about something of interest to me. I stumbled on the story of Bill Richmond, who was born a slave in America about 1763 and who became the Mohammed Ali of his time as a boxer in England. As I began my research, I had few preconceived notions about the direction I would take. Like most Americans, I shared the basic admiration for the work of our Founders and wanted them to figure into the story. In my past I had done a lot of reading about the Revolutionary War period, and as a attorney I was fairly well acquainted with the early legal cases that helped form our nation.

I reread the decision in Somersett’s Case, which was a 1772 decision of the highest court of the land, the British Court of Chancery. In that case the brilliant Judge Lord Mansfield ruled that slavery was an odious institution that could not be supported by natural law. It occurred to me that the Founders, as learned men,  must have read this decision and accounted for it in their founding documents. It struck me that for Bill Richmond to succeed in England when he was but a slave in America meant that the British had to be the more civilized of the two places, at least as to the issue of rights for minority populations. The thought crept in…perhaps we were on the wrong side in the American Revolution. And worse, was a desire to maintain slavery a core principle in fighting the Revolution and breaking away from those enlightened of England, like Lord Mansfield, who were questioning the right to maintain the institution?

Eventually my research led me to reread perhaps the most despised Supreme court decision, Dred Scott, quoted above, even though it was decided way past the years of my book. As we today contemplate the legacy of Justice Scalia, who is considered brilliant by some, I am struck by the above language which easily could have come from one of Scalia’s opinions. Instead it was written by Justice Taney in a decision held to universal condemnation since it put forth the notion that those of African descent were not and could not be a part of “we the people” and that almost any law passed by Congress which suggested otherwise was unconstitutional. The concepts of “original intent” and Scalia’s “originalism” are not new…they are the long standing bogus religions of those who really do not understand the promise of America.

It gets worse. Justice Taney requires us to make a choice. He quotes the Declaration of Independence and then puts forth an incredible notion that I took very personally.

“We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them is life, liberty, and the pursuit of happiness; that to secure these rights, Governments are instituted, deriving their just powers from the consent of the governed.”

The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation. (Justice Taney in Dred Scott)

As I contemplate the Dred Scott opinion I agree with Justice Taney that each American has to choose between accepting one of two difficult notions; that either many of our founders lacked insight and specifically set up a nation where those of African descent were never to be included, or that many of the Founders were hypocrites who deserve universal rebuke and reprobation. He chose the former and I have chosen the latter.  That leaves me where I am today, pretty much in condemnation of our Founders and their documents. I am convinced that you cannot understand the founding documents without questioning the purity of our Founders. The goals of the Founders must be analyzed and resolved for there to be legitimate analysis and criticism of their work. A new view of our Constitution is required…one that requires every word to be analyzed for its possible link to maintaining the scourge of slavery.


Not White, Not Black…Purple

Not White, Not Black…Purple

“I spent my year on the roof staring up at the stars, Wondering if I was from mars…”

                                                                                                                         Graham Parker

As a supposed white guy who has been forever working on a novel with the tentative title of I AM BILL RICHMOND about America’s first black sport superstar, I feel somewhat qualified to comment about the current issue of racial identity in America. This issue reminds me of a friend I had in High School too many years ago who would insist that inside her heart she was not white, nor black, but more like purple.

I see three kinds of Americans. The largest group I will call the Copacetics. Most white Americans and many recent immigrants fall into this group. The Copacetics basically like America and like the world. They view America as the land of opportunity where with hard work anyone can attain their piece of the American Dream. They trust in the founding fathers and especially in the Constitution and when something in America needs fixing they see in her structure the political means to affect change. Their heroes include Washington, Adams and especially Jefferson. They’re motto is from Jefferson who provided that our government was and continues to be the guarantor of “life, liberty and the pursuit of happiness.”

The second group are the Destructivists. Although they profess to be political reformers they are really anarchists who would never be satisfied with any political system that does not cater to each of their individual whims. They come on both sides of the political spectrum, from tea partyers and religious fanatics to Communists and other radical leftists. Although some of their ideas may inform the common conversation about current issues, their inherent selfishness negates any usefulness they may spout. As a result the Destructivists in America are largely marginalized which is a good thing since when they do attract mainstream attention, as in the recent ascension of the Tea Party, the result is a polarization of the conversation which is inherently destructive to American society. Their motto is “don’t tread on me” as if when they push the world away from their door they will live in the Garden of Eden… It ain’t happening.

The third group, of which I am proudly a member, I will call the Cynics. We see the members of the Copacetics and wonder how they can believe all that bullshit. We see some of the founding fathers as little more than the slaveholders that they were, and other founding fathers as apologists and accommodators to the slaveholding class. We hold that the government they set in motion was rife with the destructive forces that directly lead to untold misery through slavery, oppression of Native Americans, and civil war. An impure institution set up by impure men. The America that has been delivered to us as their progeny is a lie and an illusion based on hundreds of years of bad history and that lie continues to make solutions to our problems elusive. We are not like the Destructivists; we do have a positive goal. It is our core belief that problems cannot be solved until they are understood in an historical context and that America just doesn’t get it. America continues to worship the very leaders and laws that continually got it into trouble. We believe that it is of primary importance to recognize the basic flaws of our founders and our government in order to find our common heritage. Then perhaps we will find real solutions to our common problems. I don’t think it is a big statement to say that most American blacks are Cynics like me. A Copacetic sees a dollar bill and enjoys the freedom to spend it as he/she sees fit. A Destructivist wants to burn it and everything that it represents even though that would leave him/her without a means for improvement. A Cynic wants George Washington to be recognized as an evil man who should be removed from the bill. Put a hero like Frederick Douglas or Clara Barton on it so that it can be spent proudly. Cynics do not hate America, quite the contrary they love the promise of America. Our hero is Abraham Lincoln who fought a war because it was the only way to fix America’s biggest problem. Our motto is “a house divided cannot stand”, and therefore we continually search our history and our conscience for the cancers that divide us to find ways to bring us together as one people.

Which brings me to the idea of racial identification. I have always had difficulty at gatherings of Copacetics. They seem to be living in a dream world with their talk of pretty houses and nice cars as if everything in the world is just as it should be. Perhaps I am jealous. It would be nice to wake up and find a world that I am copacetic about. I’m just not feeling it. So even though my skin is white (sort of) and my culture is white I cannot say that I identify as white because I do not share the primary bond of the group… that they are Copacetic. This does not mean that I identify as black. I did not grow up steeped in black culture and I know that I cannot begin to sense what being black in America is like. Still I think I understand why a white person, especially one with more access to black culture than I, might identify as black. Unfortunately, you cannot fix a lie with another lie so to the degree that there is deception involved I think it unfortunate, but still I have to refrain from judging what one person does in reaction to the feeling of estrangement from their own culture. I know it is a sad thing.

So I think about my high school friend and wonder if there is a way to for Cynics like me to turn purple. It would just say to others that we don’t belong with you and we want our own culture. Like in all cultures, I would enjoy identifying and spending time with like-minded people but it is hard as hell to find us under the present pigment limitations.


WTF…Supreme Court to sue Obama

                                WTF…Supreme Court to Sue Obama

 In a rare public statement, Chief Justice Roberts announced today that the Supreme Court voted 5 to 4 to sue President Obama. Under the rarely used doctrine of Nolo disclosum, Roberts declined to say what the exact nature of the lawsuit would be, what relief would be sought, or even if the papers, when filed, would be made public. “What Americans fail to understand”, said Roberts, “is that we are in charge of the Constitution. Five of our members had sincere religious beliefs that the President was wrong about something, and we felt it was our duty to step in.” When a reporter suggested that the Supreme Court’s action seemed to be siding with the House of Representatives on the legality of one (half) branch suing another Robert’s said, “…virtually every legal scholar in the country thinks the House of Representatives was wrong to contemplate filing a law suit against the President and we just wanted to let them know that we got their back…” When noted that that House’s proposed suit was about Obamacare, a law that the Supreme Court found to be constitutional, Roberts indicated that…”we all thought that was going to be a big mess. Now that it seems to be working alright we realized that it was time to revisit the issue.” When asked about which court would hear the case, Roberts indicated “I don’t think there is any problem with the Supreme Court hearing its own case. If we were not impartial, we would not be here”.

Justice Ginsburg, who wrote a 148 page dissent in the recent Hobby Lobby case, wrote a three letter dissenting statement, joined in by Justices Kagen, Sotomayor, and Breyer, which read “WTF…?”

Hobby Lobby Two

I have a joke for you:

A guy walks into his lawyer’s office and tells the lawyer that he wants to open a business. The lawyer explains the various forms of ownership and then asks the guy “Do you have any sincere religious beliefs?” “Well”, the guy says, “I go to Church on Christmas”. The lawyer asks him if his belief is sincere. “Would that be good or bad?”, asks the guy. “Well” the lawyer continues, “if your beliefs are sincere I can save you money on any health insurance you provide to your workers.” “You bet they’re sincere”, says the guy…”and they’re getting sincerer as we speak”.
Get it?
Whaddaya mean its not funny?


On Hobby Lobby

“Sincerity, yea, I tried to throw a lot of that in there…”

Approximate response of Alex P. Keaton to the Princeton admission officer who told him that his application to Princeton seemed sincere.  (Family Ties…a sitcom)


SUCKERS! Of the many choice words that come to mind to describe the five members of the Supreme Court who supported the majority view in the Hobby Lobby case that is the word that most often comes to my mind. SUCKERS, one and all.

In Hobby Lobby, the Supreme Court enabled companies to gain tactical advantages in the marketplace based on their so-called “sincere” religious beliefs. Before this decision, these companies had to compete based on efficiency or innovation. The cruel free market was at the bedrock of core conservative thought and the courts were the arbiters of keeping the markets fair and free. Forget that. Corporations have been given a new tool by this Supreme Court…Sincerity.

For-profit companies like Hobby Lobby and every other company in America are in business to make money. They often need to distinguish their products and services in a very crowded and brutal retail marketplace. One way to do that is by establishing a corporate personality. These companies hope that they figure out a way to encourage some shoppers by developing a personality that does not alienate too many others, thereby defeating the purpose. It is a calculation. Take gun stores, for example. One would be hard pressed to find a gun store owner who does not have a broad view of the second amendment. They are not constitutional scholars, it is a necessity for their business.

So the managers at Hobby Lobby made their calculations to be an entity espousing Christian values. The fact that I may disagree with those values and boycott the stores means little to them since they hope to more than compensate for me with their target shoppers. Of course, I have never been to Hobby Lobby anyway, so their calculation is probably correct. That analysis is OK in the normal rules of a free marketplace.

The calculation is beautiful; take a stand and advertise it with a trip to the Supreme Court. Those that agree with your views will beat a path to your door. Those that disagree were largely not a part of your target audience anyway. And when the Supreme Court actually tells the world that your religious beliefs are sincere…BINGO. Those shoppers who share those beliefs are now incentivized to shop at Hobby Lobby. Either the justices purposely wanted to increase the business of certain companies AS AGAINST THEIR BUSINESS RIVALS, or they were suckered by a calculated corporate strategy into using the case to achieve other ends. I’m going with the latter.

These justices gave an actual economic advantage to one company over its competitors based on its “sincere” religious beliefs. Perhaps the costs involved will be the difference between success and failure for these competing business entities. That is not fair, contrary to the First Amendment, and frankly it is Un-American.

The good news is that business conditions change. The current market conditions favor management, as employees are happy to have jobs. In these argumentative times shoppers seem happier spending their discretionary cash at places that agree with their life philosophies. But these are difficult times and that is when bad managers do a lot of stupid things, especially for short term profit. Withholding certain health care benefits is one of those things. Maybe the managers at Hobby Lobby are business geniuses and when market conditions change they will rethink the policy. Maybe they will refuse to change and go out of business. Either way, the day will come when nobody will care about Hobby Lobby’s sincere religious beliefs.

In wartime some Quakers refused to pay their some of their taxes due to their religious beliefs. I understand that they would put the withheld amount of money into some kind of trust. Some Quakers went to jail over the issue. No high court ever supported them. While I do not agree with this form of protest because I see the issue as a slippery slope, I do not doubt the sincerity of those who practiced it. That is religious sincerity, when one takes actions against their own interests because of faith. This smells to me of something else. It seems like a calculation bought hook, line and sinker by five members of the Supreme Court so eager to prevent women from exercising constitutional rights that they personally disagree with, that they would blow past precedent, then logic, then common sense, and into situational comedy. To show their support for a business decision of Hobby Lobby, these guys were willing to break the constitution. I’m going to Michael’s today to see if they sell a kit that will put the constitution back together. This mess is going to take more than just a little super glue.


Thoughts on Lord Mansfield, James Somersett and Dido Belle


Thoughts on Lord Mansfield, James Somersett and Dido Belle

by Jerry Leibowitz

To remain as I am is impossible; I must die or be better…

                                                                                                       Abraham Lincoln

 With the release of the wonderful movie Belle, there is another in what has been a periodic reassessment of Lord Mansfield (1705-1793) and his legal decisions. Were his decisions against slave traders and benefitting runaway slaves based on deeply held beliefs or narrow commercial law principles? Did his dark skinned niece Dido Elizabeth Belle’s presence in his house influence him in his decisions on the Zong, or perhaps the Somersett Case? Why did he provide for the manumission of Dido in his will if she was a free black woman? Did he appreciate the impact of his decisions or, as some believe, continually minimize their scope? Did he singlehandedly start the American Revolution through the Somersett decision? The numerous questions raised by his decisions and life require thoughtful analysis.[i] Here I skim the surface for a logical approach to this man and how his decisions affected his times.

Lord Mansfield had a brilliant legal mind. It would not be an exaggeration to say he is considered as one of the geniuses of legal thought. He is basically credited with codifying if not inventing Commercial Law.[ii] One must therefore begin with the assumption that he knew exactly what he was doing and said and wrote exactly what he meant. In the area of Commercial Law, fortunes are often made or lost as a result of a legal decision. It must be assumed that Lord Mansfield contemplated the consequences of his decisions, and to the degree that anyone can, knew full well of their ramifications.

The current reassessment as a result of the movie Belle focuses more on his role as a social justice. The Somersett Decision (1772), in which he freed an American slave who had been brought to England is often credited with jumpstarting the antislavery movement if not outright declaring slavery illegal, something that it did not do. The Zong decision (1783), difficult to address due to its horrible facts, is given great play in the movie when really I could have decided that case correctly. If bad facts make bad law, it must be said of the Zong decision that horrible facts can make no law at all. Still the questions about Lord Mansfield motives and objectives must be addressed if only to clarify and contextualize the liberties taken in the movie Belle.

One interesting theory is that Lord Mansfield did singlehandedly start, or at least made inevitable, the American Revolution.[iii] In 1772, he issued the decision in Somersett’s Case where he freed the slave James Somersett solely because Somersett had been brought to the free soil of England by his slave master.  It is unclear if there was a written decision or if the oral decision was transcribed and reported. What is not in doubt is the fact that as a high judge of British Courts he called the practice of slavery “odious”. He did not have to use that word or any pejorative term to get to his result. He could have found some way to decide the case under Commercial Law principles without diving into the merits of controversial social topic whose survival was of great concern to the commercial interests of 18th century Great Britain. Whether the decision freed one slave, as Benjamin Franklin suggested, or was intended to be the basis for freedom of all slaves in England and perhaps all of Great Britain has been debated. I suppose that was purposely left murky by Lord Mansfield. What is not in doubt was that Lord Mansfield sent a message to slave holders. He told proud men like Patrick Henry and George Washington and Thomas Jefferson that their practice of owning slaves was odious and by extension, they were barbarians. Lord Mansfield was more stating the obvious than providing a revelation. How could the decision not have impacted wealthy slaveholders who were British subjects operating under British Laws when a great judge of Great Britain called them odious? One would think that there must have been a reasonable fear that the existence of the institution of slavery would eventually be terminated by the same tribunal. Hence, the theory goes, the American Revolution or at least the southern participation in the War became inevitable to protect the institution of slavery. All from one word in one decision that had nothing to do with slavery on the American continent. The problem with the theory is that in the thousands of documents written by and about American patriots in the 1770’s, there is nary a mention of the decision in Somersett’s Case. While some thoughts are better left unsaid or at least unwritten, it seems unlikely that the decision in that case could be so important yet not have crept into some contemporary documents. There was a lot going on in America then as loyal British subjects were moved to become revolutionaries. The role of the Somersett decision in that process clearly deserves to be considered as a motivational theory, even as the reported facts of the time tend towards minimizing its significance absent better proof.

Let me backtrack. Even as great a mind as Lord Mansfield could not know the ultimate consequences his decision in Somersett’s Case might have. In 1772, he could not guess that instead of searching for practical ways to address the slavery issue, by 1775 the Americans would unite against British rule and start a revolution. He could not know that the Americans would be victorious in the War and therefore successful in promulgating “positive law” that would continue the institution of slavery well into the 19th century. He could not know (well maybe he could!) that the hearts of men could be so cold that they would double down in their odious practices. All he could know is that in 1772 slavery in America and the slave trade of Great Britain seemed intractable; he could not score his goal, he could only move the ball. I do not think anyone can contemplate the word “odious” and not know where his heart stood. Lord Mansfield was categorically against the institution of slavery and of that there can be no doubt.

Lord Mansfield had tremendous respect for the law and not only did he want his decisions to make sense, he wanted Commercial Law to be codified under consistent principles. His Commercial Law decisions provided great certainty to the mercantile interests of Great Britain. No matter what his personal feelings about slavery were, he still had to apply consistent principles to the cases before him. But where did slavery fit into Commercial Law? If slaves were chattel they could be treated as any other property, subject to the whims of the owners. But what other chattel could become free? By 1772, London was a city with a sizable population of former slaves who were living as free persons. One such person, Dido Elizabeth Belle, was related to him, she lived in his house, and by many accounts was cherished by him. These free people owned things…and ownership is the bedrock of Commercial Law. Chattel cannot own chattel. What if someone claimed to own someone living as a free man, much as Charles Stewart claimed to own James Somersett in 1772? How could Commercial Law deal with this oddity? The simple answer is that it could not! There really was no way of including slavery into any system of Commercial Law that would truly make sense. To Lord Mansfield, two important principles intersected. The first was that slavery and anything connected to slavery was “odious”. The second was that there could be no consistent rules of Commercial Law in the murky areas relating to slave ownership. The cases involving slavery existed in their own universe; a place where humans could be compared to horses. It was a place where Lord Mansfield could use words like “odious” to convey his heartfelt opinion that such a universe should not exist. So yes, it is most likely that Dido Belle’s presence in his home influenced his decisions, but not more so than the world influences the decisions of all of us, each and every day.

I have a special interest and expertise in the somewhat controversial area of adverse possession, where the ownership of real property changes based on possession. Lord Mansfield invented the term “adverse possession” and helped change the notion of adverse interests from a negative approach to a positive one. Before this approach the title to abandoned property was forfeited by the old owner but no new title was created in the hands of the possessor. Lord Mansfield helped create the new notion of good title by possession and thereby cleared up many of England’s longstanding title issues. Think now of Dido Belle. Under the Somersett decision by her great uncle she was a free woman as long as she lived in England. Right? Well not if you read the Treaty of Paris. The Americans who spouted about liberty and independence wanted all of their slaves back as a spoil of winning their war. After 1781 and the surrender of Cornwallis, the former slaves in England, their children and their children’s children were considered by the victorious Americans to be slaves again, subjected to return to America. They became a subject of treaty negotiations in 1783 and again in 1794.[iv] These negotiations did not go well for the (former) slaves. Lord Mansfield had no claim of ownership of Dido Bell through any purchase, so by what right could he confirm her freedom in his will? Adverse Possession, of course, or at least the similar principle as applied to chattel. Arguably Lord Mansfield’s work in codifying adverse possession of chattel freed more slaves than his Somersett decision…quite a trick for work in commercial law.

I am unabashed in my praise of Lord Mansfield and the first Four Dukes of Northumberland, of whom I have written about elsewhere. If the definition of greatness is when one rises above their circumstances, then these are all great men. Born into an entrenched system which they benefited from greatly, they worked to change that system at its core. None of them ended slavery in America but each in their own way moved the ball forward towards that end. That is more than I can say for some American “heroes”, who elegantly wrote of and fought for liberty yet did nothing to help the millions of people that they ultimately helped oppress.



[i] A great place to start is the recent biography by Professor Norman Poser entitled Lord Mansfield, Justice in the Age of Reason (McGill-Queen’s University Press, Canada 2013. The book provides a complete and balanced context for any discussion of Lord Mansfield and his times. I would also like to personally thank Professor Poser for his emails which helped me clarify some thoughts appearing herein.


[ii] Bernard L. Shientag, Lord Mansfield Revisited– A Modern Assessment, 10 Fordham L. Rev. 345 (1941).


Available at: Accessed June 17,2014


[iii] See Alfred W. Blumrosen and Ruth G. Blumrosen, Slave Nation, How Slavery United the Colonies & Sparked the American Revolution (Sourcebooks Inc., Naperville Illinois 2005).


[iv]  The Autobiography of Colonel John Trumbull, Edited by Theodore Sizer for the Library of American Art (Kennedy Graphics, Inc.-Da Capo Press New York 1970) Page 180.



Barack Obama…Greatest President ever?

Barack Obama…Greatest President Ever?

by Jerry Leibowitz

I was not trying to be intriguing when I mentioned to some conservative friends that I thought President Obama would ultimately be considered as one of our greatest presidents. “You mean great like George Washington and Abraham Lincoln. What has he done?” one asked incredulously. They did not wait for my answer which would have been…”great like Lincoln…much greater than Washington who is incredibly overrated if only because he was an unrepentant and indifferent slave owner.” I’m not sure that would have helped my cause.
I muttered something about Jackie Robinson and was cut off again. In the present political climate, even political discussions taking place at card games and dinner parties start to sound like those on cable news. Blah, Blah, Blah; you leave with what you came in with.
I do believe that to understand why Obama may be considered as one of our greatest presidents you really must understand that the reasons why so many want him to fail are similar to the reasons that so many wanted Jackie Robinson to fail, reasons which are not as obvious as you might think. Like politics, baseball has a tradition where you scream loudly in favor of your team and more loudly against the opposition. You may even say off color remarks intended to throw the other teams players off guard. Sometimes fans curse, and some fans hurl insults that go over the line of decency, and in baseball at least, there is some tolerance if not acceptance of that extreme as long as it is only words that cross the fence line and reach the playing field. I suggest that many of those who yelled insults at Jackie Robinson thought they were just were rooting for their own team. In their midst were those who were not of a competitive spirit; they were not even baseball fans but were the most vile of human beings,truly filled with and spewing hate. We will never know how many and who was who and I do not think that ultimately matters. The yellers of all kinds were the obstacle that Jackie Robinson had to and did overcome, and the greater the obstacle the more remarkable the victory.
Jackie Robinson played 10 years in the big leagues from 1947 to 1956. He batted over .300 six times and left the game with a career batting average of .311. Not a power hitter, he had a respectable 137 homers and 734 RBI’s. Rookie of the year in 1947, MVP in 1949, he was a six time all star with six world series appearances, including one world championship. These are not the greatest statistics of any player ever to play the game. Yogi Berra had arguably better numbers during the same period while spending most of his baseball life crouching, but even his numbers are not considered to be near the greatest in baseball history. Yet Jackie Robinson’s numbers are the statistics of the only player in baseball history to have his number universally retired, arguably the greatest player to ever play the game. In my opinion, nobody really comes close.
We all must make our way in a somewhat hostile world. Truly lucky are those who are insiders, born with the correct gifts into the correct country and the correct family. Not that life is ever easy, but it would take an uninformed person to fail to acknowledge that succeeding in life is easier for some birth situations than others. If Jackie Robinson was the baseball’s greatest player it is because of what he overcame, not necessarily because of what he produced. In fact, I suggest that had he just been left alone, his legacy would be diminished as it would only be determined by his very good but not spectacular numbers.
So to all those who rail against Barak Obama, I submit that you are increasing his legacy with every utterance. As a result of your carrying on, his movie will be remarkably similar to “42”. He is the president who was plotted against on the night of his inauguration. He is the president who was called a liar on the floor of Congress during a nationally televised State of the Union address. He was called a traitor as he sought out and killed Osama Bin Laden. He was absolutely excoriated for his desire that most Americans should have health insurance. The questions of his legitimacy and loyalty to his country were constantly questioned and he was called a Socialist as he diligently sought to pull America up from its economic despair. Unlike baseball, There are no numbers in politics and therefore there is no real way to compare his accomplishments, or lack thereof, to those of his predecessors. What I do know is that like Jackie Robinson he inspired many among us, often those who needed inspiration the most.
To those who do not like President Obama, I say that you should have left him alone to secure his legacy on an even playing field. I know that many of you yell about him because you prefer the other team. But some of the tactics are ugly and unfortunately, and even the ugliest utterances get little push back from the more well meaning opposition. Many on the right hated Presidents Clinton and Carter. Many on the left hated Presidents Bush (W) and Reagan. We debate their legacies in accordance with their accomplishments. But because the hatred for President Obama seems to take on a Biblical proportion, his legacy will be judged by Jackie Robinson standards which you are powerless to affect. Regardless of his accomplishments, it is you who have turned him into perhaps the greatest president ever.