Memo to Mark Levin: Article V Convention of States Has One Big Caveat

By Alan W. Cohen

Watch out Mark Levin. It has all happened before. The author and conservative radio host has begun a movement under Article V of the Constitution to create a convention of states to amend the constitution to strip the federal government of much of its ill-gotten gains, gains that have diluted freedom from the individual and authority from the states. On his radio show of October 10, 2017, a caller warned him that the federal courts are lurking in the shadows, waiting to override any sweeping changes the convention might pass. In response, Levin was confident that the states would prevail.

Yet, that is exactly what happened with the Fourteenth Amendment, and we still have not recovered almost 150 years later. As I explain in much greater detail in my latest book, Private Vows: The Case for Ending State Regulation of Marriage and Divorce, the Civil War ended with a great Republican majority passing a series of Amendments, each with their own purpose. The Thirteenth Amendment ended slavery. The Fifteenth Amendment guaranteed the right to vote. But the Fourteenth Amendment had another, more profound, purpose.

As Mr. Levin explains in great detail in his most recent book, Rediscovering Americanism (please see the link to my review at the end of this blog), the Founders of our nation believed, and declared it in 1776, that we are endowed by our Creator with certain inalienable rights. And, with all due respect to those morons on MSNBC and CNN, those rights predated, and are the basis for, the Constitution. That is because we are all individuals, individuals that banded together to protect the rights of other individuals. Yet, somewhere along the line, our nation changed from being a republic to being a democracy. Georgetown law professor Randy Barnett explains that when the Founders created the Constitution, it was based on the Declaration of Independence, and that the preamble said it all. We the People means we the people as a collection of individuals, not of the majority. Unfortunately, a movement began, less than 25 years later, to justify slavery, a movement that became the Jacksonian Democracy. Levin calls it mobocracy. Barnett calls it the Democratic Constitution. A key illustration is this phenomenon is the Kansas-Nebraska Act of 1854, an act that empowered the citizens of those states to vote on whether to enslave a minority of their peers.

The Supreme Court signed onto the Jacksonian Democracy in 1833, the year after Jackson’s landslide victory over Henry Clay for his second term. Here I will invoke the name of a person that Mr. Levin detests as a bigot, a racist and an anti-Semite: Supreme Court Justice Hugo Black. Despite his serious flaws, Justice Black proposed in a dissenting opinion in 1948 that we lost our republic in 1833 with the case of Baron ex rel. Tierman v. Mayor of Baltimore, where the Supreme Court declared that the Bill of Rights did not apply to the states, but only to actions of the federal government. Black suggests that Chief Justice John Marshall was just a bit dishonest in his four-page opinion, a sparse writing of what was one the most important decisions of the century. In fact, as I explain in Private Vows, Marshall was scared, and had good reason to be. President Jackson was a scoundrel, and had recently refused to abide by a Supreme Court opinion protecting the Cherokee leading to the infamous Trail of Tears. Until Jackson came onto the scene, Marshall had carefully fostered the Supreme Court’s authority to override legislation and executive actions through the power of judicial review. Marshall anxiously wanted to preserve his gains, and knew to tread carefully to avoid Jackson’s wrath.

The real question in Baron was whether the federal courts had the authority to enforce the inalienable rights recognized in the Declaration, the rights of the individual against the authority of the state or local government that was violating those rights. That same question is with us today. In a dissenting opinion in 2000, Justice Antonin Scalia agreed with fellow Justice Clarence Thomas that the Constitution preserves those inalienable rights within the Ninth Amendment, but refused to enforce them because the Constitution did not specifically provide for a remedy. The question for Justice Scalia then, as with Chief Justice Marshall in 1833, is this: What good are rights if there is no place to enforce them? According to Justice Black, Marshall adeptly sidestepped the issue, and for good reason. As I explain in Private Vows, if the federal courts had the authority to enforce inalienable rights against state or local governments in 1833, slaves would have been coming in droves to seek redress and there would have been a civil war. Since Marshall sidestepped the issue, the Court could not enforce Dred Scott’s claims for freedom only a few years later, an event that ironically led to the death of hundreds of thousands of Americans that Marshall had so greatly sought to avoid. After the Civil War, according to Justice Black, it fell on Congress to right the wrong of Baron and restore the Republic, and individual liberty, with the passage of the Fourteenth Amendment, making it clear that individuals did indeed have a right to redress of state and local violations of their individual rights in the federal courts (as well as in the state courts).

There was one big problem. The Supreme Court was filled with Jacksonians who refused to comply with Congress’ mandate even if it was the will of the required number of states. In the infamous Slaughter-House Cases in 1873, the Court all but nullified the Fourteenth Amendment by calling it just an anti-slavery amendment:

The constitutional provision there alluded to did not create those rights, which it called privileges and immunities of citizens of the States. It threw around them in that clause no security for the citizen of the State in which they were claimed or exercised. Nor did it profess to control the power of the State governments over the rights of its own citizens

Thus began more than a century of state control over the individual so vast that individual freedom was all but lost, freedom that the Founders intended, freedom that we still don’t have today. Soon after The Slaughter-House Cases, the Supreme Court affirmed state policies based on eugenics, justifying discriminatory laws and, as a means of enforcing them, created out of thin air, as I explain in Private Vows, a justification for state regulation of marriage and divorce. As Levin explains in Rediscovering Americanism, this statist thinking became the fodder for the socialists, the so called Progressives as a means for controlling the masses. It inspired the ever Progressive Woodrow Wilson to re-segregate the entire federal government during his first term of office. It empowered the KKK to rule with a violence, ending black lives on the spot just for the crime of not being white.

Thus, the lesson for Mark Levin and his followers is that that an Amendment to the Constitution is not enough. We have to fill the Supreme Court with those willing to enforce it. While, as with the Trump travel ban, we cry over the illegal nature of the Ninth Circuit and other federal courts, those actions pale in comparison to the 19th Century and a Supreme Court that was hell bent to undo the Union victory, to preserve and restore the Jacksonian Democracy. and to preserve racial and religious discrimination.

Alan W. Cohen practiced law for more than 25 years before retiring. He is a graduate of the University of Missouri-Columbia School of Journalism and the Washington University School of Law.  Besides Private Vows, he is also the author of America Solved: A New Family for the 21st Century, as well as several other books on family law.

Recent Blogs:

Three Important Lessons I Learned From Mark Levin’s Rediscovering Americanism

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Another Teacher Rape of a Young Boy, Another Future Child Support Claim

By Alan W. Cohen

It seems like it happens every year. Some loco female teacher go gaga over a young boy, and is found out only when a child results. It happened again this week, when it was reported:

“Marissa A. Mowry, 25, was arrested by the Hillsborough County Sheriffs Office and taken to the county’s jail, Fox 13 reported.

Mowry reportedly started a sexual relationship with an 11-year-old boy in 2014 when she was 22, police said, adding that the relationship went on until the boy was 14.

In October 2014, Mowry gave birth to a child who is now 3, deputies said.

Mowry is facing sexual battery and sexual assault charges. The Hillsborough County Sheriffs Office Child Protective Division is also investigating the incident, WFLA added.”

Here’s the bad news for that boy. In just four years, he will be a legal adult, and that same rapist will likely go after him for child support and win. Yes, being the victim of a rape is no defense to child support. That was something that was decided in the family courts more than 25 years ago when a Wisconsin Court of Appeals found that a being raped as a minor was no defense to paternity, that the resulting child was the innocent one, and all children deserve to be supported. Period. All 50 states have adopted this principle, as has our federal government. All that matters is that the sperm hits the egg.

A more immoral statement has never been spoken. And that is what our nation has turned into, a land where right is wrong and wrong is right, where the Natural Law that Aristotle spoke of, is turned completely on its head. The Roman senator Cicero distinguished between the laws of nature and the law of man. The law of nature was moral and incorruptible, while the law of man changes with the wind, the will of the mob against the rights of the individual.

What we have in America, and have had for more than 150 years, is man made law trumping natural law. As I explain in my new book, Private Vows: The Case for Ending State Regulation of Marriage and Divorce, the Founders of our great nation believed in the Natural Law, that, as stated in the Declaration of Independence, “we were endowed by Our Creator with certain unalienable rights” including the Right to Parent and the Right to Marry, rights that are forever entwined in Religious Liberty. When our Supreme Court, beginning in 1833, turned away from individual liberty in favor of majority rule, it turned against Natural Law. As Locke once said, Natural Law is right reason, that is purely ethical. Our Founders agreed, finding that government had no authority under the Constitution to compel anyone to do anything when it came to how to raise their children.

In 1888, the Supreme Court rejected the Founders and adopted a bastardized version of English marriage law that was based on the canons of the Anglican Church, forcing all Americans to adhere to what was, in England, a voluntary choice. The government was thus free to compel individuals to adhere to its rules, one being that a husband must support his children or be subject to state determined punishment. In 1973, the Supreme Court ruled that children had no right to financial support from their fathers, but if a state required fathers to support their children, it could not discriminate based on marital status. The federal government pounced, and issued laws requiring all fathers to support their children until age 18, creating an immense bureaucracy that puts the IRS to shame, to enforce that edict.

So, for this now 14-year-old boy, who will be forever traumatized, the rape is not over. It will continue for the next 15 years thanks to the federal government and the Supreme Court.

Alan W. Cohen is retired after more than 25 years as an attorney practicing Family Law. He is also the author of America Solved: A New Family for the 21st Century, a scathing review of what he calls The Child Support System.

Recent Past Blogs:

RIP: Herma Hill Kay, Creator of No-Fault Divorce, Destroyer of Traditional Marriage

Simple Health Care Solution Pits Capitalism Against Socialism

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RIP: Herma Hill Kay, Creator of No-Fault Divorce, Destroyer of Traditional Marriage

By Alan W. Cohen

There is one law that neither state legislatures, nor the United States Congress, can destroy. That is the Law of Unintended Consequences, the law that suggests that drastic changes in the status quo might sound good on paper, but in reality lead to disastrous results. So it was with no-fault divorce, and its matriarch, the late University of California-Berkeley law professor Herma Hill Kay, who died last week at the age of 82. Kay, who was three times married, felt that the patriarchal society had imprisoned in her marriage, and wished that all women could be freed to make their own choices. Kay’s problem was not that she was wrong, but that her solution was completely one-sided, creating an full scale war on men that would be the focal point of second wave feminism.

Sharon Presley explains that in a 2015 essay that all Kay and the second wave feminists did was exchange one patriarchy for another. “Libertarians fail to see how women—or men—can be free of domination when they are dominated by a coercive government. If one of the goals of feminism to achieve a society in which women are free to make their own decisions about their own lives independent of the coercive domination of men, we fail to see how a government currently dominated by men is an improvement, let alone feminist.” Presley cites a discussion paper of the Association of Libertarian Feminists that stated in 1975: “…turning to the government just changes the sort of oppression women face, not the fact. Instead of being overburdened as mothers or wives, we become overburdened as taxpayers since child-care workers, doctors, etc., have to be paid by someone unless they are to be enslaved also! Turning to the government to solve our problems just replaces oppression by patriarchs we know—father, husband, boss—with oppression by patriarchs we don’t know—the hordes of legislators and bureaucrats who are increasingly prying into every nook and cranny of our lives!”

As I explain in my new book, Private Vows: The Case for Ending State Regulation of Marriage and Divorce, state and federal coercion has no constitutional validity, but rather is based on the patriarchy of the Anglican Church, where a woman was property of her husband, and confined as the United States Supreme Court said in Bradwell v. State in 1873 to the role of wife and mother.  Religious freedom is forever intertwined in marriage and parenthood, and the state and federal adoption of the canons of a particular religion are directly counter to our Founding documents. Yet, for a century after, the price of confining women to their predetermined role bore squarely on men who, as modern day writers such as Camille Paglia have pointed out, were pushed to take on professions that could daily end their lives And, thanks to Kay, men continued to pay the price as all fifty states adopted her solution, one that permitted women freedom, but continued to place the financial burden of marriage and eventual divorce on both their husbands and their children. Further, as psychologist Barbara Whitehead pointed out in her iconic study, enshrined in her book, The Divorce Culture, women were the instigators of divorce 85 percent of the time, and their reasons had little to do with the actions of their husbands. Rather, women sought some form of nirvana that they called happiness, a place that Aristotle tells us exists only after a lifetime of achievement.

Instead of freedom, all that Kay achieved for women was weakening of both men and women. Permitting the easy escape from a contractual commitment without dire consequences greatly diminished the nature of the bond. Marriages morphed from a lifetime choice to a temporary one. Marriage is hard work. As a result of the no fault divorce, first women, and later men, decided that it is not really worth the effort, and pale in comparison to the emotional strength of their ancestors. Can you picture the spoiled snowflakes of today living in the harsh realities of the 19th Century?
They wouldn’t make it through a single day without folding. Life is not a fantasy. Chick flicks remain stalwart in their romantic belief that the wedding is the beginning rather than the end of the story of life happily ever after. Reality is far from it.

Camille Paglia puts it best when she writes, “women have lost the daylong companionship and solidarity they once enjoyed with other women when they ruled the private sphere. … An enlightened feminism, animated by a courageous code of personal responsibility, can only be built upon a wary alliance of strong women and strong men.”

From her pen to God’s ears.

Alan W. Cohen is retired after more than 25 years as a family law attorney. He is a  blogger and author. He is also the author of the 2015 book, America Solved: A New Family for the 21st Century.

Some of his recent blog posts:

America at a Crossroads: Embrace Freedom, or Accept Totalitarianism

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Can Millennials Save Marriage in America? Studies Say Yes.

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Tomi Lahren Touches The Soul of the Libertarian on Abortion Question


3 Requirements That Must Be Met in Order for Trump’s Jobs Plan to Work

By Alan W. Cohen

During his campaign, Donald Trump was about one thing: Jobs. Without much help from Congress, he is doing everything he can to support business investment in America to stimulate job creation. But the President is up against more than fifty years of failed government policies that have all but destroyed the incentive of those seeking to fill those jobs. He is up against fifty years of destruction of what was once called the Protestant Worth Ethic.

Donald Trump is seeing the world through his era, when couples married young and stayed together for life, when there was little divorce, and an unwanted pregnancy was a community-wide shame. This was the time when young men saw their place in society based on their chosen career. Their purpose was clear. Succeed to attract the best of of spouses, and to create a good life for himself and his family. Young men entered high school in search of both. Some, not all, went to college if that dream required a higher education. Others chose a different path, to create, or, perhaps, just to work and survive, without a family.

Those days are long over. Young men entering college today are less likely to see their future because they see college as an extension of high school, one where they are freer to play and party and chase girls, many who are more willing than ever to participate without any promise of a future. The statistics are daunting. According to Nicholas Eberstadt, in his recent book,  Men Without Work: America’s Invisible Crisis, there is a smaller percentage of working age men in the workforce than at any time since the Great Depression, and the trend is continuing on a downward spiral. That explains why home ownership rates are also falling and are at the lowest rate since the Great Depression. Marriage rates continue to fall to their lowest ever. The same can be said for the average length of marriage. Meanwhile the rate of children born outside of marriage continues to climb to upwards of 40 percent, more than 72 percent in the African American community.

As I said in my 2015 book, America Solved: A New Family for the 21st Century, the blame for this disaster falls squarely on the federal government and its insidiously stupid child support policies, policies that are more racist than Jim Crow, and more destructive to the African American community than the Ku Klux Klan. In America Solved, I explain how Lyndon Johnson sought to control the African American vote, and how Johnson ignored the findings of the 1965 Moynihan Report that called for a complete reversal of a Kennedy administration policy that not only legislated single-parent families, but required the evicted husbands to pay back to the federal government the sum it was paying as a condition of his eviction. To summarize, the report said: Poor children have poor fathers and, unless immediately changed, would cause irreversible the African American family. Yet, as I explain in America Solved, those policies remain in place, and those grim statistics are a natural and logical consequence of Johnson’s policy, one that has expanded to a complete federal takeover of family law in America. Incredibly, federal policy is to incarcerate those that fail to pay the sum as determined by the state government agency or court at a cost that far exceeds their debt, even though more than 70 percent of all child support arrears is owed not to the mother, but the federal government, and 90 percent is owed by men earning less than $10,000 a year. It’s insanity on steroids.

So, the bottom line for President Donald Trump is to do three things that he alone can do from the Oval Office without a Congress that has been hell-bent for more than fifty years to continue its socialist expansion:

  1. End Mass Incarceration: Send a message to those men, especially those in poverty and those in the African American community that you hear their cries by issuing pardons to anyone who was ever convicted of criminal nonsupport, and by stopping the funding of federal paid jailing of those convicted. America was supposed to have banned debtor’s prisons at the turn of the 19th Century, but recreated them with the ill-fated 1996 Welfare Reform Bill.
  2. Stop Collection of Government Owed Debt for Back Child Support. As I explain in America Solved: A New Family for the 21st Century, federal law does not permit this debt (unlike back taxes) to be discounted, or in any way forgiven, despite the fact that 90 percent of those who owe it are the same chronically poor that the Welfare program was supposed to help. While President Trump is forbidden from forgiving the debt, a hiatus on all collection efforts will create a momentum that future presidents will have to continue. As well, it will shine a light on this incredibly stupid and racist policy.
  3. Push Male Contraceptives: Only Congress can reverse the illogical belief that men have any control over procreation, and thus should be punished for creating children they cannot support. Condoms are insufficient and the CDC claims only a 5 in 6 success rate. Big Pharma is reluctant to invest in new, inexpensive methods for both the Male Pill, and especially an inoculation procedure created by a doctor in India that would physically block sperm from being ejaculated with the remainder of the semen, a procedure that could be reversed with a similar inoculation.  By forcing these medical procedures and drugs into the open market, and even pushing its distribution, President Trump would be telling these young men that they can live their lives without the fear that their success will be punished. Current child support policies are outdated, and, as I explain in my 2017 book, Private Vows: The Case for Ending State Regulation of Marriage and Divorce, unconstitutional. Those policies assume that people will continue to earn more as they get older, and project that higher income on any person who is not presently earning that amount, despite the fact that, if that assumption were ever true, it hasn’t been for at least a generation. As a result, men are saying to America in the most passive aggressive way possible: Why bother? Better to hang around their parents’ house, play video games and get high.

If President Trump wants young men in America to sign on to his program, they must have the idea that he has their back, that he understands their plight. But mostly he must create the incentive for success that is sorely missing in our great nation. They must be free to find their purpose in life, and free to pursue their happiness. Mostly, however, they need to know that the hard work will be worth it. While you cannot reverse fifty years of bad policy overnight, these three measures will be a start. Congress has been asleep at the wheel or headed in the wrong direction, showing no signs of a course correction. That leaves it up to one man. Good luck Mr. President.

Alan W. Cohen is a retired attorney, blogger and author.

Past blogs:

 Why Anti-Sharia Protests Are Misguided

Islamist Victory in Antisemitic Public Relations Battle Spells Doom for Freedom,

Completes Conquest of Europe

75 Notre Dame Students Embarrass Themselves, The University, Their Parents, and Especially America

Trump Travel Ban Highlights Political Conflicts Inside American Judicial System

America at a Crossroads: Embrace Freedom, or Accept Totalitarianism

Can Millennials Save Marriage in America? Studies Say Yes.

Susan Rice and Unmasking: Where is the Democrats’ Moral Compass?

Comey Confirms that Hillary the Evil Genius Behind the Trump/Russia Scandal

New Copy of the Declaration of Independence Brings Out the Crazies

By Alan W. Cohen

There is no doubt that certain people in high places want to cast doubt on anything that is America, particularly our founding. But this latest pronouncement coming from two Harvard professors is over the top nuts.

You may have heard on the news that someone in Great Britain discovered a parchment document purported to be an original copy, meaning a true hand written copy of the Declaration of Independence. Assuming that it is a true document, and no one has explained how it could be a true document, what is different from the original? Are there passages different? No. Does the document contain different words? No. Did different people sign the document? No.

So what is the big deal? It turns out that the order of signatures are different. So what? We all know how the Declaration came to be. Continental Congress met and each colony voted. The Declaration went through the mill until all thirteen colonies voted to consent. So, now two Harvard professors are claiming that there is some special meaning to the order of the signatures. In the original, the signers were organized by their newly founded states. In this new copy, they are randomly signed. Before getting into the weeds of what that difference might signify, lets imagine that this document is authentic. How would it have come about? After signing the original, the Continental Congress needed to spread the word, and that required copies. Since no copy machines were then available, scribes copied the document by hand, and then asked the signers to redo their respective John Hancocks. Therefore, there was no purpose behind the order of signatures for the copies. The scribes probably had to chase down the signors, who just signed somewhere on the page.

But two Harvard professors have declared some hidden meaning behind this difference, that it must mean that federalism is a fiction. Alas, the Founders signed as one nation, not as a collection of states. And,  your point is? Doesn’t the Constitution begin We the People of the United States? Of course, it is from the people. The Declaration itself is about alienable rights and the pursuit of happiness, not of the states, but of the people who live in those states. Those same people divvied up authority between the federal and state governments, reserving those inalienable rights for themselves.  That is what we call federalism.

I am beginning to wonder what they are smoking at Harvard.

Alan W. Cohen is an author and blogger, retired from the practice of law after 25 years. His new book, Private Vows: The Case for Ending State Regulation of Marriage and Divorce is available on Amazon.

Read Past Blogs:

I Have Come to Praise Bill O’Reilly, Not to Bury Him

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Easter Message: Why Religion is Vital to Maintaining Our Liberty

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Syria Bombing: Why History Trumps Libertarian Beliefs

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Can Millennials Save Marriage in America? Studies Say Yes.

By Alan W. Cohen

In my 25 years as a family law attorney, I witnessed an increasing parade of lost souls seeking happiness, never realizing, as Aristotle tells us, that happiness takes a lifetime to achieve. The Declaration of Independence guarantees the right to pursue happiness. It does not guarantee it.  As I explain in my book, America Solved, published in 2015, marriage is a learned skill, cultivated over generations, a skill that has been lost to the false promises of government that made them believe that it was the solution that all their ills, and that they would find solace in a compassionate court system that would bring them comfort and joy.

As I explain in my new book,  Private Vows , the court system was never intended to fix anything. It was intended to deter people, mostly men, from failing to meet their legal obligations, knowing that society was well suited to deter women from doing so. It is, and has been for almost two generations, ill-fitted and ill-suited for the times, becoming divorce factories, churning out sausage that, as H.L. Mencken said of legislation, no one of weak stomach should see be made. Family courts have become, as one lawyer-advertiser accurately describes, little fiefdoms, with judges, under the guise of judicial discretion, applying laws arbitrarily and punishing people capriciously, not to achieve some greater public policy of right and wrong, but to fit their personal whims, much to the distress of those litigants that find themselves in the cross hairs.

In a recent article from P.J.Media, provides some hope. It turns out that millennials are fed up with the status of the family unit as it has become today, and yearn for the stability of the past, the Leave it to Beaver world of stay-at-home moms and worker dads. While they agree that women should have a choice to enter the workforce, millennials crave the world where their children come home to a loving parent, not wailing away in some day care.  As I explain in America Solved, young men and women today are completely confused as to what they were supposed to do. Mind you, the post-war generation is a singular time in history. At our founding we were an agrarian society, where husbands and wives worked side by side, and their children were charged with helping out in any way they could. In the Gilded Age, women took on roles in sweat shops alongside their children to supplement the family income.  They knew that for their marriage to work, they must be all in.

As I explain in Private Vows, the Founders never intended for government to have a role in family matters. As the Supreme Court said in 2015, marriage began in America as a purely private affair, and then morphed into what we have today. The Founders intended for people to have the freedom to make their own life decisions without government interference that is both unconstitutional and unconscionable. Thus, those millennials that seek to restore the sanctity of what they see as traditional marriage, they must seek the wisdom of the Founders, and join to rid themselves of the tyranny of government interference in their inalienable right to the Pursuit of Happiness.

As I explain in America Solved,  government does not solve the problem; government is the problem. As I explain in Private Vows, everything the courts have said for the past 150 years about marital duties and rights is a blatant misinterpretation of what we call the common law. Nothing in the Constitution gives the state, and especially the federal government, the authority to force their views upon us when it comes to the family. Marriage under English law was a contract, and contracts are about voluntary action, and that is what our Founders prescribed.

Alan W. Cohen is a graduate of the University of Missouri-Columbia School of Journalism and the Washington University (St. Louis) School of Law. His books are available on Amazon.