The Balance of Power (play)

I was asked to create a light entertainment for a judicial conference. The subject, resolved: the balance of power in the United States federal government, as described in that classic School House Rock anthem, “Three-Ring Government."

No one can be
More powerful than any other is
Each controls the other, you see
And that’s what we call checks and balances.

Martin Friedman, who reached out to me about the work, and directed today’s performance, asked that I focus on the case of Marbury v. Madison – you know, that famous 1803 Supreme Court case, Marbury v. Madison.

In all seriousness, however, when I asked this lawyer acquaintance of mine about it, he was quite familiar, that case is Law School 101, the one which established the Supreme Court’s power to strike down any law deemed “unconstitutional.”

So, I would be describing to a hall of judges and lawyers a case with which they were already very familiar? Got it. We’re making it funny.

Carrie Williams

Researching (and comprehending) Marbury led me backward to the Federalist Papers, and Alexander “THE OTHER FIFTY-ONE” Hamilton, so he’s in there. 

I also learned that Marbury was only time the Supreme Court overturned an act of Congress for fifty-four years, the next time being the Dred Scott v. Sandford (1857). I tried to drop in a piece about that, but you know what? The Dred Scott Decision isn't funny.

It was suggested that the show culminate with Richard Nixon, and his decision to cleave to his oath and resign the Presidency, even or because he eventually did so only because he was compelled to by the other two branches of government. And the press.

To bridge these century-spanning events, and to bring things into a contemporary context, I staged an argument between the four current, adult, living generations of Americans about the Constitutional crises of their respective youths. Because I had been asked specifically not to mention you-know-who, as if that was even necessary.

This play script is available for reading at New Play Exchange.   

"The Balance of Power" was commissioned by and performed for the Judicial Conference of the Eighth Judicial District at the Hilton Downtown on Friday, April 24, 2026.

Process LXXVI

So, I was feeling like I was getting seriously behind in my work and spent all of Sunday and Monday editing the new script for Oatman’s playwriting workshop and by class I had completed a first draft of what I am currently calling After Roe.

What’s crazy is that it actually works.

During my interviews I was asking everyone the same few questions and I was concerned that all the subjects would end up sounding the same. Not only did that not happen (and why was I concerned that it might) but as a result there were several places where they dovetail nicely together, creating what almost sounds like a conversation.

The man thinks I need more hard-edged voices. I’m not sure I can do that. The thing I have decided is that this is not journalism. This is advocacy. And presenting strong voices of opposition, well, first of all, fuck those people, but also, I should inevitably make them sound like assholes and I have enough integrity not to do that.

Am I preaching to the choir with this endeavor? No, I am not. If anything, I am providing an education to those who may not have a broad understanding of the subject, including those who already support the issue.

Which is to say, I spoke with a lot of very intelligent and thoughtful people. It’s their words. I just put it together into an entertaining evening.

Monday I also received certified documents from the state of Ohio which I sent right back out to Jackson County, Missouri. The question now is whether or not I get what I am requesting before the end of the semester. It’s kind of a big deal.

Ohio Criminal Syndicalism Act

The Ohio Criminal Syndicalism statute made it a crime to advocate "the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform" and to "voluntarily assemble with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."

(syndicalism: n. A radical political movement that advocates bringing industry and government under the control of federations of labor unions by the use of direct action, such as general strikes and sabotage.)

The Ohio Criminal Syndicalism Statute was enacted in 1919. In 1927, this Court sustained the constitutionality of California's Criminal Syndicalism Act, the text of which is quite similar to that of the laws of Ohio. Whitney v. California, 274 U.S. 357 (1927). The Court upheld the statute on the ground that, without more, "advocating" violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it. - UMCK website, Brandenburg v. Ohio

Following the Great War, an anti-communist movement called the First Red Scare began to spread across America. As a result of the 1917 Soviet Revolution, Russia pulled out of WWI which many allies saw as a betrayal. Also, as the Russian Revolution was a violent overthrow of a government, and the ideology of communism called for expansion, it was feared by the establishment that the working underclass may be inspired to revolt anywhere.

These fears were also fueled by the thousands of immigrants coming to America every day, especially from the Southern and Eastern European states.

The Ohio Criminal Syndicalism Act sought to penalize that which is merely advocacy - which is to say, free speech.

Between 1951 and 1954, the Ohio Un-American Activities Committee, headed by House member Samuel Devine, questioned forty Ohioans, asking each person, "Right now, are you an active member of the Communist Party?" Every person refused to answer, citing the Fifth Amendment of the United States Constitution, which protects Americans against self-incrimination. Most of the accused were college students or people during the 1930s who advocated socialist or communist programs to end the Great Depression. Various grand juries eventually indicted the forty people, with fifteen of these accused being convicted for supporting communism.

In 1952, the Ohio Un-American Activities Committee contended that 1,300 Ohioans were members of the Communist Party. Approximately seven hundred of these people supposedly resided near Cleveland and worked in various industrial occupations, while four hundred more resided in other northern Ohio cities. Only two hundred communists supposedly resided in central and southern parts of the state. - Ohio History Central

It should come as no surprise to the more cynical among us that the Ohio Criminal Syndicalism Act was not struck down as unconstitutional by the Supreme Court until 1969 - in the defense of a Clarence Brandenburg, the leader of a Hamilton County-based chapter of the Ku Klux Klan.

Sources:
University of Missouri-Kansas City School of Law
Ohio History Central
Wikipedia