cally. By taking issues away from the staternlegislatures—be it abortion, gay rights,rnor, now, tort reform—the Court endangersrnour liberties, and calls into questionrnthe fundamental concept of federalismrnand the very foundation of our governmentrnstructure, representative democracy.rnDavid ]. Owsiany is an attorney inrnColumbus, Ohio, and a member of thernhoard of trustees of the Ohio Alliancernfor Civil Justice. The views expressed arernhis own.rnSolomons andrnCaesarsrnby Gregory J. SullivanrnKaren Finley is a “performancernartist.” Her performances are succinctlyrndescribed by Judge Robert Borkrnin his new book Slouching Towards Gomorrah:rn”Before an audience, [Finley]rnwould strip to the waist, smear her bodyrnwith chocolate (to represent excrement)rnand sprouts (sperm), and wail aboutrnwhat men have done to women.” Accordingrnto a recent decision by the California-rnbased Ninth Circuit Court of Appealsrn—the former court of the apostaternJustice Kennedy—Finley’s First Amendmentrnright to free speech was violatedrnwhen the National Endowment for thernArts (NEA) turned her down for a grant.rnClearly, First Amendment jurisprudencernhas departed from the realm of reason.rnIn response to the NEA’s support ofrnRobert Mapplethorpe’s pornographicrnphotographs and Andres Serrano’srnblasphemous “Piss Christ,” Congressrnamended a statute to require that thernNEA “take into consideration generalrnstandards of decency and respect for therndiverse beliefs and values of the Americanrnpublic” when making grants. ThernNinth Circuit’s opinion, which alongrnwith the district court’s opinion decorouslyrneschewed a description of Finley’srnperformance (would such a descriptionrnhave been indecent?), said that this standardrnwas, under the First Amendment,rnan impermissible content-based restriction.rnThe fact that Finley’s right to freernspeech was not in the least abridged—rnthe NEA simply refused to force the taxpayersrnto subsidize it—failed to makernany difference to this majority of whatrnJudge Bork has called “First Amendmentrnvoluptuaries.”rnIn his dissent. Judge Andrew Kleinfeldrnhas no difficulty demolishing the majority’srnembarrassing incoherence. “Wernnow live in a legal context prohibitingrndisplay of a cross or menorah on governmentrnproperty,” he noted. “But if a crossrnis immersed in urine, a governmentrngrant cannot be withheld on the groundrnthat the art would offend general standardsrnof decency and respect for the religiousrnbeliefs of most Americans.” Hernwryly added: “This self-contradictoryrnsilliness is not built into the Bill ofrnRights. The First Amendment does notrnprohibit the free exercise of commonrnsense.” Judge Kleinfeld explained to thernmajority a proposition with which anyrnfirst-year law student is familiar: “FirstrnAmendment law protects individual libertyrnfrom government, not the governmentrnfrom the people.”rnOf course, Finley is not a constitutionalrnaberration, especially by Ninth Circuitrnstandards. In Compassion in Dying v.rnWashington, for example, the Ninth Circuit,rnwith a brazen lawlessness and abusernof the historical evidence that might surpriserneven Justice Brennan, invented arnhitherto unknown right to physician-assistedrnsuicide. This right was promulgatedrnover another fine dissent by JudgernKleinfeld in which he pointed out a fundamentalrnerror in the approach in bothrnCompassion in Dying and Finley. JudgernKleinfeld, who was appointed to thernNinth Circuit in 1991 by President Bushrn(Bush’s other appointment: ClarencernThomas), observed that the “FoundingrnFathers did not establish the UnitedrnStates as a democratic republic so thatrnelected officials would decide trivia,rnwhile all great questions would be decidedrnby the judiciary. . . . That an issue isrnimportant does not mean that the people,rnthrough their democratically electedrnrepresentatives, do not have the power torndecide it. One might suppose that therngeneral rule in a democratic republicrnwould be the opposite, with a few exceptions.”rnThis is a sound understanding ofrnour constitutional system, and in its wittingrnrenunciation of this understandingrnthe Ninth Circuit subverts the documentrnthat it purports to construe. Thisrnpoint is particularly true with respect tornthe author of the lunatic majority opinionrnin Compassion in Dying, JudgernStephen Reinhardt, who specializes inrnresults-driven, make-it-up-as-you-goalongrnjurisprudence.rnWhat can be done about such abuses?rnThe appointment of more jurists likernJudge Kleinfeld is critical, but that is impossiblernwith President Clinton in thernWhite House. The main thing at thisrnpoint is to make sure that these decisionsrnare recognized for the arrogation of powerrnby the judiciary that they plainly are.rnIn the short term, the most obvious wayrnto eliminate the problem presented byrnthe Finley case is to enact what manyrnconservatives have advocated: the abolitionrnof the NEA and the removal of therngovernment from the art-subsidy businessrnaltogether. And in order to salvagernwhat little is left of intelligible constitutionalrnlaw, perhaps we should also abolishrnthe Ninth Circuit Court of Appeals.rnGregory ]. Sullivan is an attorney inrnprivate practice in New Jersey.rnGOVERNMENTrnSecession and thernNew AmericanrnConstitutionrnby Joseph StumphrnThe nine states that ratified the Constitutionrnon June 21, 1788, createdrnan entirely new government. This governmentrnwas not patterned after the onernestablished under the Articles of Confederation,rnwhich was created by the 13rnstates just seven years before. The Articlesrnactually transferred very little powerrnto the agent they called the “central,” orrn”general,” government and readily recognizedrnthat the attempt by 13 sovereignrnnations to act in unison was an untriedrnexperiment. For example, it was well understoodrnthat if these states were to defeatrnCreat Britain in the RevolutionaryrnWar, it would take a unified effort of allrn13 acting as one, as well as “a firmrnReliance on the Protection of divinernProvidence.”rnThe Revolutionary War officiallyrnended with the signing of the Treaty ofrnParis on September 3, 1783. The states’rnnewly won independence was acknowledgedrnwhen Great Britain, in the firstrn48/CHRONICLESrnrnrn