The sad story of SOPA

For anyone who creates content, on a large scale or a small scale, there is nothing more frustrating than trying to get paid for it.

At one time, content creators — who used to be known as writers, actors, directors, songwriters, musicians and sometimes producers — would struggle and struggle until finally they sold something or were cast in something or created something that became wildly popular. Then they would make boatloads of money all at once and sometimes enjoy a continuing stream of payments for years to come.

Then, one day, the Internet happened.

That’s how non-technology people understand it.

On the day the Internet happened, content was converted into ones and zeros and it flew through the darkness in mysterious ways that no one with a tape vault could quite follow.

Let me explain that old reference for all you technology people. There used to be a thing called a lock, and it was on a door, and behind the door were long rows of shelves on which were the finished products of content creators. No one outside was allowed to go inside, and nothing inside was allowed to go outside, and that’s how Snow White sold her virtue over and over again to a new audience of seven-year-olds every seven years.

Then the Internet happened.

Suddenly content creators had a whole new world of opportunity to showcase their work and be seen by millions. No longer did a handful of gatekeepers decide who would glitter in front of the public and who would serve them club sandwiches at DuPar’s.

Alas, the money left next to the napkin dispenser on the table at DuPar’s is a Rockefeller’s fortune next to the money that comes in from the Internet.

Until you’ve actually seen a check for nine cents, you can’t quite experience the sensation. If you’ve ever had the stomach flu, it’s a little like that.

Hollywood studios have spent the last fifteen or twenty years developing one sophisticated copy protection system after another at a cost of considerably more than nine cents, and all they have to show for it is nine cents. Gleeful pirates cheerfully “crack” the files and post the content on servers all around the globe faster than a studio security guard can tell you you’re not on the list.

The Stop Online Piracy Act and its Senate companion, the Protect IP Act, are the culmination of years of anger and frustration in the entertainment industry, driven by rage and resentment at the tech community’s sense of entitlement to other people’s work. Does it seem that Hollywood is unconcerned about the threat SOPA and PIPA pose to the Internet? You bet Hollywood is unconcerned. The faster the Internet is shut down, the sooner everybody in Beverly Hills can get their houses out of foreclosure.

Just the same, SOPA and PIPA have to be stopped.

They have to be stopped because history suggests that they will gum up the works without solving the problem.

Remember when Congress decided to get tough on illegal immigration by requiring everyone in America to show a passport or Social Security card before they could be hired for a job? Did it stop the hiring of illegal immigrants? Or did it just create a massive hassle for employers and employees?

Remember when Congress decided to get tough on meth labs by requiring allergy medicine to be sold behind the pharmacy counter and only to people who showed a photo ID and signed the registry of federal allergy offenders?

Remember when Congress decided to take over airport security?

SOPA and PIPA would require companies like Google to take action to block allegedly copyright-infringing sites. Major technology companies say if the bills become law in anything like their current forms, the security and functioning of the Internet will be devastated. Based on past experience with government attempts to stop criminals by putting new requirements on law-abiding people, there is every reason to think they’re right.

© 2012

Susan Shelley is running for Congress in California’s 30th District against Rep. Howard Berman and Rep. Brad Sherman, who are co-sponsors of the Stop Online Piracy Act. She’s the author of the novel, The 37th Amendment and of a history of the Bill of Rights titled “How the First Amendment Came to Protect Topless Dancing: A Citizen’s Guide to the Incorporation Doctrine.”

Town Hall video clips

Just in case you’d like to see some clips of yours truly in last week’s 30th Congressional District Town Hall debate, sponsored by the Woodland Hills-Tarzana Chamber of Commerce and held at the Westfield Promenade Mall, here they are.

These clips show my opening statement and my answer to the first question of the evening. More clips will follow. You can subscribe to the SusanShelley2012 channel on YouTube at this link: if you’d like to see them all.


Susan Shelley is running for Congress in California’s 30th district, the west and south San Fernando Valley. She’s the author of the novel, “The 37th Amendment,” and of a history of the Bill of Rights titled, “How the First Amendment Came to Protect Topless Dancing.”

Iran, Israel, Ron Paul and me

At the 30th congressional district Town Hall forum in Woodland Hills on Thursday night, I was asked if I would support a pre-emptive strike by Israel against Iranian nuclear facilities.

I answered that I would support an Israeli pre-emptive strike.

One of my friends from the Republican Liberty Caucus sent a note asking me about that position.

Our full correspondence is copied below. I hope it will explain my views to all my friends who support Ron Paul and all my friends who support Israel.

Susan Shelley: Great to see you at the debate! Thanks for coming.

Peggy Christensen: Hi Susan, thanks for being a voice for the individual. Only place you lost me was re Israel and pre-emptive strike. I would like to understand more about your reasoning and assessment.

Susan Shelley: What I was trying to say — and if they hadn’t directed that question to me first, I might have had my thoughts more organized before I started answering — was that Israel is a sovereign nation and has the right to defend itself against attacks, including planned or imminent attacks, by hostile entities. If Israel conducted an air strike against nuclear weapons facilities in Iran, I would not condemn Israel. I would support Israel’s right to take action against a nation that has called for its annihilation, if they determine that the nation is building a weapon to accomplish that goal. (I don’t agree with Ron Paul that Iran’s desire to wipe Israel off the map is a mistranslation. I didn’t hear anybody from Iran or any country clarify that they didn’t really desire to wipe Israel off the map.)

I don’t support the idea of the United States launching a pre-emptive strike or war on Iran. I don’t agree with Mark Reed. I agree with Admiral William J. Fallon, who was pushed out as commander of Centcom by President Bush in 2008 after telling Esquire magazine that the United States should not go to war with Iran. Admiral Fallon said what the United States needs for its own security is a combination of “strength and willingness to engage.” And I believe we should only send troops to fight when Congress authorizes it with a declaration of war. These wars with no mission and no end are destructive to freedom; the government claims “wartime” powers, but an undeclared war with no end cannot be a justification for an ever-increasing federal power grab.

In my opinion, most of the problems in the world are caused by collectivism. As those societies fail economically, they engage in all kinds of damaging actions — wars, insane debt, demands for climate reparations from western nations, and, in my view, scapegoating of the Jews. I believe that any country, with any religion or culture or history, can be a peaceful trading partner of the United States if it adopts a constitutional government of limited power that respects and protects individual rights. The tragedy of Iraq and Afghanistan is that we have left those countries in a state of permanent tribal warfare, with no protection for individual rights and no limits on the governments’ power. We assigned troops to “win hearts and minds” by building schools. Dictatorships have schools. Free countries have limited government and individual rights. We shouldn’t have gone into Iraq, and it just compounds the tragedy that our own government couldn’t understand that democracy alone is not freedom. (See “A Plan to Get Out of Iraq” at

The point I wanted to make about supporting Israel with military aid is that the United States government, going back to President Eisenhower and maybe earlier than that, has asked Israel to compromise its own security on many occasions. One very visible example was during the first Gulf War, when Iraq fired Scud missiles into Israel. The U.S. asked Israel not to respond, for fear that Israeli military involvement in the Gulf War would fracture the coalition with the Arab nations that President Bush had put together. So Israeli parents taught their children how to put on a gas mask, and the United States had an obligation to guarantee Israel’s security.

That’s just one example. You can go back to the Sinai campaign in the 1950s and right up to the most recent elections in the Gaza Strip. Those elections, which were held at the urging of President George W. Bush, gave control of the Gaza Strip to Hamas, a terrorist organization that has vowed the destruction of Israel.

Ron Paul has made the point many times that Israel should have the right to defend itself without asking the United States for permission. I agree with him about that.

But I don’t agree that we should completely abandon our military or financial support of Israel. The U.S. has asked Israel to take many, many risks with its own security, because we thought it was necessary to protect some of these authoritarian Arab regimes for whatever reason — the Cold War, or oil, or terror, or something else. Because we asked Israel to take these risks, Israeli citizens are attacked by rockets and threatened with worse. I think we have to hold up our end of the bargain. In my view, many people make the mistake of looking at the Middle East as if the whole fight started a week ago. It started in the late 1940s, and the picture looks very different when you zoom out to that distance.

We may disagree on this one issue, but I hope I’ve clarified what I was trying to say at the debate.

On my campaign website, there are links to some things I’ve written about Israel and related issues. You can find them at

Thanks for your patience with this long answer.


Peggy Christensen: Excellent and thorough response. I appreciate the fact that you have consistently well-thought out and reasoned responses and positions on all of the major issues. Moreover, what you say always makes sense and reflects values that I respect, which I cannot say about any of the other candidates. I am going to share your answer with some friends if that is okay with you ( I assume so, just confirming!)

Susan Shelley: Thanks, Peggy. Of course it’s okay with me to share the response. I should probably post it on my blog, too. I know a lot of the people who support Israel are suspicious of Ron Paul, and a lot of the people who support Ron Paul are suspicious of Israel. Maybe we can find some common ground and work together to win. We’re really all on the same side. We want peace and prosperity. And freedom.

Peggy Christensen: Agreed. I am against the idea of pre-emptive strike in general, because it is an act of aggression, or war. There would have to be compelling and urgent evidence of impending harm to justify it. I take it down to the level of the individual to clarify under what circumstances violence is justified. I would never attack my neighbor just because he made threats against me, but I certainly would be wary and if I really knew he was planning to attack/harm me, I would feel justified in disarming him, even killing him if it escalated to the point where my life was imminently threatened. Meanwhile, I don’t go lookin for fights by interfering with others!


Editor’s note: You may be interested in the 2008 America Wants To Know post, “Vice President William J. Fallon.”

Susan Shelley is the author of the novel, The 37th Amendment and of a history of the Bill of Rights titled, “How the First Amendment Came to Protect Topless Dancing.” She’s running for Congress in California’s 30th district, the west and south San Fernando Valley.

The first Town Hall debate in the 30th Congressional District

My thanks to everyone who called or e-mailed with the same question after seeing the news coverage of the 30th congressional district Town Hall debate Thursday night at Westfield’s Promenade mall in Woodland Hills.

I am standing.

Now you all have the same question again.

Five feet even.

A long time ago I worked with a woman from Paris who was exactly my size. She had a stock answer when people exclaimed that she was only five feet tall. “Zat is all what it takes,” she’d tell them.

Click on the image above to read Jonah Lowenfeld’s account of the debate in the Jewish Journal. Here’s a link to the coverage in the L.A. Times and the L.A. Daily News.

Here’s a video still that shows all the candidates seated:

Maybe the next debate can be held on a plane over Washington D.C., just inside the radius where FAA regulations prohibit passengers from getting out of their seats.

Or maybe someone in Hollywood will locate one of those apple boxes that Lana Turner used for close-ups with Clark Gable. If you have one, put it on eBay and send me an e-mail!


America Wants to Know author Susan Shelley is running for Congress in California’s 30th District, the west and south San Fernando Valley. Her campaign website can be found at

Leave Google alone

To everyone who thinks Google is succeeding because it is using some kind of illegal monopoly powers to crush its competition, here’s something that ought to change your mind.

A cousin sent me a text on New Year’s Eve, in Spanish. Even though I knew what it said, I decided to type the words into an online translator, just to see if they had improved any from the last time I tried one. (See the 2006 post, “Lost in translation.”)

Here’s the translation from Google’s online translator (Click the image to enlarge):

And here’s the translation from Yahoo’s online translator (Click the image to enlarge):

If you can’t quite read that, the message was “Feliz ano nuevo mis hermanos y hermanos. Karyn y yo te amamos mucho.” Google translated it as “Happy new year my brothers and sisters. Karyn and I love you very much.” Yahoo translated the same message as “Happy new anus my brothers and brothers. Karyn and I loved much to you.”

Any questions?

Here’s one. Will everyone in government please stop threatening Google with antitrust prosecutions? Leave them alone. They’re brilliant, they’re giving away free services, and they figured out a way to make money on the Internet. Game, set, match.

Fair and square.

© 2012

Editor’s note: You may be interested in the earlier America Wants To Know post, “How the antitrust laws help incumbents raise money.”

Susan Shelley is running for Congress in California’s 30th District, the west and south San Fernando Valley. She’s the author of the novel, The 37th Amendment and of a history of the Bill of Rights titled How the First Amendment Came to Protect Topless Dancing.

Nancy Pelosi’s “obligation”

If you needed any more evidence of the institutional corruption of the United States Congress, we have today the remarks of Nancy Pelosi’s daughter that the former House Speaker “would retire right now, if the donors she has didn’t want her to stay so badly.”

Alexandra Pelosi told Andrew Breitbart’s Big Government that her mother wants to leave Congress and the donors know it. “She has very few days left,” Alexandra said. “She’s 71, she wants to have a life, she’s done. It’s obligation, that’s all I’m saying.”

Did you catch that?

Minority Leader Nancy Pelosi has an “obligation” to her donors.

She’s been traveling around raising money, and the people who donated that money have made it clear to her that she has an “obligation.”

To do what?

Nothing that can be written down on paper and handed off to Steny Hoyer, apparently. Mrs. Pelosi’s donors have an understanding of some sort with her, personally. And nothing is in writing.

All nice and legal. Or at least unprovable.

They’ve all got to go.

© 2011

Susan Shelley is running for Congress in California’s 30th District, the west and south San Fernando Valley. She’s the author of the novel, The 37th Amendment and of a history of the Bill of Rights titled How the First Amendment Came to Protect Topless Dancing.

Losing your lunch in L.A.

“Two fourth-graders find a way to share school’s food,” reads a Los Angeles Times headline today, “Thanks to the 9-year-old girls, unwanted and leftover lunch items from a Cudahy school go to needy families.”

Heartwarming, isn’t it?

Especially if your heart is warmed by stories that illustrate why government should stop meddling in people’s lives.

You see, this is not a story about the generosity of fourth-graders. This is a story about the massive failure of the Los Angeles Unified School District’s new healthy menu.

“Many of the meals are being rejected en masse,” the L.A. Times reported on December 17. “Participation in the school lunch program has dropped by thousands of students. Principals report massive waste, with unopened milk cartons and uneaten entrees being thrown away. Students are ditching lunch, and some say they’re suffering from headaches, stomach pains and even anemia. At many campuses, an underground market for chips, candy, fast-food burgers and other taboo fare is thriving.”

L.A. Unified’s food services director, Dennis Barrett, said this month the menu will be revised. They’re going to drop beef jambalaya, vegetable curry, pad Thai, lentil and brown rice cutlets, quinoa and black-eyed pea salads, and Caribbean meatballs.

But let’s get back to the two fourth-grade girls, who counted the unopened lunches in the garbage at Jaime Escalante Elementary School in Cudahy, California, and made a graph showing that 500 lunch items per week were going into the trash. So they wrote a letter to Dennis Barrett asking if the school lunches could be donated to needy families.

“At the end of September, Barrett wrote back,” the L.A. Times reported. “He explained that the Board of Education had passed a resolution in April that laid out a food donation policy allowing nonprofit agencies to collect and distribute unopened lunch items. He added that the girls might set up a ‘common table’ where students could leave school food they don’t eat for others who wanted seconds or who wanted to try something new.”

Barrett told the Times that, currently, “71 schools in the district donate unopened food to 21 agencies across the county.”

Isn’t that nice.

Everyone in the bureaucracy is so proud. They have a healthful menu that is culturally diverse and they are feeding needy families. Check, check and check.

Bureaucrats don’t care about outcomes, only process. To a bureaucrat, a problem solved is a job lost.

So taxpayers foot the bill for school lunches, and the kids go hungry. The district’s budget hemorrhages money for ivory-tower consultants who think children will eat lentil and brown rice cutlets. Elementary school students sit in class with headaches and stomach pain, and high school students learn how to run a black market for candy bars.

This is happening because the federal government takes too much money from the American people, leaving the states unable to collect enough revenue from those same taxpayers to meet the states’ responsibilities. Then the federal government magnanimously gives the states money to pay for things like education and school lunches. This puts local school officials in the position of always having to please federal authorities.

If Michelle Obama had decided to devote her First Lady-hood to the promotion of electric cars, children in the Los Angeles Unified School District might be happily eating corn dogs and pizza right now. “Get out of here with your lentils,” Dennis Barrett might have told the anti-obesity activists, “We’re serving lunch to fight hunger, not cause it.”

But he can’t say that. Everybody in the school district has to worry about losing federal funds, and that means they have to smile and like it, no matter what the federal government tries to shove down their throats.

That’s the difference between a school district official and a fourth-grader.

© 2011

Susan Shelley is running for Congress in California’s 30th District, the west and south San Fernando Valley. She is writing a book titled “Uncle Sam’s Nickel” about revitalizing the economy by replacing the current federal tax code with a five-percent flat tax. Read more about it in “Restoring the Raise: How to Cause a Labor Shortage in America” at

Vigilant liberty

Does the 2012 National Defense Authorization Act (NDAA) allow the government to detain American citizens indefinitely without charges or trial?

Rep. Tim Griffin, a freshman Republican congressman from Arkansas and a 16-year member of the U.S. Army Reserve’s Judge Advocate General (JAG) Corps, says it doesn’t.

That would be a lot more credible if we didn’t have a president who sent the U.S. military to Libya without congressional authorization and okayed the death-by-drone of an American citizen in Yemen.

The New York Times just filed a lawsuit against the Justice Department for the legal memorandum detailing “the scope of the circumstances in which it is lawful for government officials to employ targeted killing as a policy tool.”

The Times’ complaint states, “Both before and after the death of [Anwar] al-Awlaki, NYT duly filed FOIA [Freedom of Information Act] requests seeking memoranda that detail the legal analysis behind the government’s use of targeted lethal force.”

The Justice Department won’t give them anything.

That’s not good.

Here’s the problem: everything in the war on terror is secret, and secrecy allows mistakes (and worse) to go undetected. Forever.

So if the U.S. government detains an American citizen in the belief that he’s a deep-cover, high-ranking, jihad-waging member of al-Qaeda, nobody will be able to check to see if it’s true. Nobody will be able to say, “Hey, that guy who phoned in the tip is a liar.”

We can be manipulated quite easily by rivals for power in faraway places.

Nobody wants to see a terrorist escape the clutches of justice and go on to kill hundreds or thousands of people, but the purpose of “due process of law” is not the protection of the guilty. It’s the protection of the innocent and wrongly accused.

It’s in the Constitution twice.

The ancient legal protection of habeas corpus, which prevents the government from locking people up forever without charges or trial, is not something Congress can scratch out of the law with an amendment to a defense bill in the year-end rush to get home for Christmas. The courts won’t stand for it. This is not a close call.

But it’s a disgrace that Congress even passed an amendment that civil libertarians believe may allow the federal government to detain American citizens indefinitely without due process of law.

Whatever the lawmakers’ intention, it’s an unacceptable risk to liberty.

© 2011

Editor’s note: You may be interested in the 2008 America Wants to Know post, “The innocent tomatoes,” and the 2007 post, “The trouble with waterboarding.”

Susan Shelley is running for Congress in California’s 30th District. She’s the author of The 37th Amendment, a novel set in the year 2056, forty years after the guarantee of “due process of law” is removed from the U.S. Constitution.

How the antitrust laws help incumbents raise money

“The antitrust laws give the government the power to prosecute and convict any business concern in the country any time it chooses,” Ayn Rand wrote in 1962. Antitrust, she wrote, is “a haphazard accumulation of non-objective laws so vague, complex, contradictory and inconsistent that any business practice can now be construed as illegal, and by complying with one law a businessman opens himself to prosecution under several others.”

AT&T chairman and CEO Randall Stephenson announced today that the company is giving up on its $39 billion bid to acquire T-Mobile and will pay the $4 billion “break-up fee” rather than continue to fight with the government for the right to proceed with the deal.

“AT&T first announced its bid for T-Mobile in March,” Politico reported, “predicting soon after it would sail through an official review of the deal by the FCC and Department of Justice by early 2012.”

Not so fast there.

To the surprise of Wall Street and the experts who do this for a living, the Obama administration’s Department of Justice antitrust division took the matter to court. A couple of months later, the FCC decided to oppose the deal, too.

AT&T gave up.

Now, ask yourself this question: If it’s so terribly and obviously illegal for AT&T to acquire T-Mobile, why did all the lawyers and experts hired by AT&T and all the Wall Street firms that evaluated the deal miss this terribly obvious fact?

Perhaps it is because the antitrust laws are “a haphazard accumulation of non-objective laws so vague, complex, contradictory and inconsistent that any business practice can now be construed as illegal, and by complying with one law a businessman opens himself to prosecution under several others.”

Who benefits from the antitrust laws? Certainly not the companies that are doing business in America, or any of the unemployed people who would like to be hired by them. A smaller company that today appears to be saved by government restraints on a big company may see the matter differently when its own deals are tied up in court and its own profits are sucked dry by legal expenses.

In a government that is supposed to be one of limited power, the antitrust laws are a source of unlimited power.

“The threat of sudden destruction, of unpredictable retaliation for unnamed offenses, is a much more potent means of enslavement than explicit dictatorial laws,” Ayn Rand wrote. “It demands more than mere obedience; it leaves men no policy save one: to please the authorities; to please–in any issue, matter, or circumstance, for fear of an unknowable, unprovable vengeance.”

Now we know who benefits.

Government officials benefit when the laws — not only antitrust laws, but also laws like the Dodd-Frank financial reform or the health care reform act — are so vague that no one is sure what they prohibit or allow. This gives government officials all kinds of leverage over other people’s productive enterprises. They can pressure companies to do things that no law requires, like forgive some of the principal balance on home loans, or substitute apple slices for French fries in Happy Meals.

And there’s one more thing government officials can do with their unlimited power.

They can raise money.

How much money did AT&T donate to President Obama’s re-election campaign this year?

Don’t bother looking it up, here’s the answer: “Not enough.”

They gave President Obama $20,982 for the 2012 election cycle through the third quarter of 2011, if you’re curious.

Congress can get into the act, too. Certain industries have exemptions from the antitrust laws, and Congress regularly threatens to revoke those exemptions if industries don’t play ball. For example, there was no legal reason that Major League Baseball officials had to come before a committee of Congress to answer questions about steroid use. But when lawmakers warned darkly that Major League Baseball’s antitrust exemption might be reviewed, everybody was on a plane to Washington to cooperate voluntarily.

When the NFL decided to telecast an important game exclusively on the NFL Network four years ago, Senators Pat Leahy and Arlen Specter, respectively the chairman and ranking member of the Senate Judiciary Committee, sent the NFL a letter warning that they might introduce legislation to withdraw the NFL’s antitrust exemption. The NFL relented and the game was simulcast on CBS and NBC.

When health insurance companies released a study showing that the proposed health care reform bill would raise premium costs for policyholders by 18 percent more than they would otherwise rise, President Obama used one of his weekly addresses to threaten the insurance industry with the loss of its “privileged exemption” from the nation’s antitrust laws.

Who benefits from the antitrust laws? Any politician who wants to raise campaign cash or redistribute the wealth of someone else’s business.

“He does not have to exercise his power too frequently or too openly,” Ayn Rand wrote, “he merely has to have it and let his victims know that he has it; fear will do the rest.”

If you’re a business executive reading this post, try this little experiment. Put an empty coffee can under your desk. Every time you think of doing something that’s perfectly legal and within your rights, and then you catch yourself thinking, “I don’t know if the government would like that,” drop a dollar into the coffee can.

When the total reaches a hundred dollars, take it out and put it back in your wallet. If there’s one thing this government doesn’t like, it’s an accumulation of wealth.

© 2011

Source note: Ayn Rand, “Antitrust: The Rule of Unreason”; The Objectivist Newsletter; February, 1962. Reprinted in The Voice of Reason: Essays in Objectivist Thought by Ayn Rand, available from, the Ayn Rand Institute’s bookstore, and many other booksellers.

Susan Shelley is running for Congress in California’s 30th District. She’s the author of the novel, The 37th Amendment and of a history of the Bill of Rights titled How the First Amendment Came to Protect Topless Dancing: A Citizen’s Guide to the Incorporation Doctrine.

Newt Gingrich and the missing ink

Presidential candidate Newt Gingrich was on CBS’s “Face the Nation” today explaining why he would send U.S. marshals to arrest federal judges who issue outrageous rulings.

There really should be a sign on the wall at the Debate Zoo that reads, “Please Don’t Feed the Comedians.”

“How does the president decide what’s a good law and I’m going to obey the Supreme Court or what’s a bad law and I’m just going to ignore it?” host Bob Schieffer asked the former House Speaker.

“I think it depends on the severity of the case,” Gingrich answered. “I’m not suggesting that the Congress and the president review every decision. I’m suggesting that when there are decisions, using Boumediene as an example, in which they’re literally risking putting civil liberty rules in battlefields, it’s utterly irrational for the Supreme Court to take on its shoulders the defense of the United States. It’s a violation of the Constitution.”

Quicker than a jackrabbit in a hurricane, as Dan Rather might say, Bob Schieffer pulled out the big gun used to blast people who criticize federal courts for overreaching.

Brown vs. Board of Education was a very controversial decision,” Schieffer said. “There were a large number of people in the United States that didn’t want to do that. Are you saying that should the president have been so disposed, he could have just ignored that?”

That’s usually enough to silence anybody, but Newt Gingrich isn’t just anybody.

“I’m saying that in the case of Dred Scott, which was an equally important and terrible decision,” Gingrich said, “remember the court’s sometimes right, the court’s sometimes wrong.”

“Well that was then, this is now,” Schieffer responded.

“No, no, no,” Gingrich said.”You can’t be sure what the next court will do and the question is, as a people do we have the right to take the 9th Circuit Court, which ruled the one nation under God was unconstitutional in the pledge of allegiance. Do we as a people, where over 90 percent of the people believe that’s false, the Senate and the House overwhelmingly rejected it immediately. They had a vote almost immediately, overwhelmingly rejected it.”

Maybe we can help shed some light on this controversy.

We need judicial activism because the Fourteenth Amendment did not ban racial discrimination.

If you’re interested in the details, the footnotes and the bibliography, read “How the First Amendment Came to Protect Topless Dancing.” Here’s the link to the essay that was published in 2002 as an appendix to the novel, “The 37th Amendment,” and here’s a link to the expanded and updated eBook edition that was published in 2011.

In 1866, the Congress that debated and passed the Fourteenth Amendment deliberately left racial segregation and other kinds of racial discrimination in place. In the Senate, spectators watched the debate from a segregated gallery. In the House, lawmakers working to pass the Civil Rights Bill of 1866 had to cut the words, “there shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery” before the final vote, because “some gentlemen were apprehensive” that the courts might use that language to strike down racial segregation. This “latitudinarian construction” of the law, House Judiciary Chairman James Wilson explained, was “not intended.”

The framers of the Fourteenth Amendment intended to secure “fundamental” rights to the freed slaves: life, liberty and property. They were not keen on guaranteeing social or political equality. Laws banning interracial marriage were left untouched. Racial segregation in schools remained, even in Washington D.C. itself. Some states barred blacks from serving on juries or holding public office, and the right to vote came one Amendment later, in 1870.

That’s the history of the Fourteenth Amendment.

In 1954, Brown vs. Board of Education was a landmark decision. That means it changed something. The justices of the U.S. Supreme Court made a change in the law.

If you want to be a ’strict constructionist’ about it, the Constitution says lawmaking is the province of Congress, not the courts.

But we can’t be strict constructionists, because we’re not going to turn the clock back and declare that the states have the power to segregate their schools.

Now you know why Bob Schieffer went straight to Brown vs. Board of Education, even though the former Speaker was discussing court rulings related to religion and civil liberties. If you’re going to say you’re opposed to judicial activism, you’d better have an answer for the Brown vs. Board of Education question.

Here’s an answer.

The Constitution has never been amended to ban racial discrimination, and it ought to be. As soon as possible. Neither the United States nor any State shall make or enforce any law which discriminates on the basis of race.

As long as we’re writing an amendment, let’s make it “race or gender.” The Fourteenth Amendment didn’t do much for women, either.

© 2011

Susan Shelley is running for Congress in California’s 30th District. She’s the author of the novel, The 37th Amendment and of a history of the Bill of Rights titled How the First Amendment Came to Protect Topless Dancing: A Citizen’s Guide to the Incorporation Doctrine. If you’d like her to speak to your audience about this very specialized topic, contact her at See a video of Susan Shelley at this link: