James M. Redwine

War

Legally Thinking

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Mount Rushmore

 

My brother, Philip Redwine, that is Philip spelled with the Biblical one “l”, graduated from the Oklahoma University Law School while I was an undergraduate at Indiana University. When I asked him what he had been taught he told me the entire process boiled down to “learning to think like a lawyer”. When I excitedly quizzed him about that arcane and mysterious subject he replied the whole three years of law school could be summarized by the following story:

“A client asked his attorney for advice as to whether he should file for a divorce. The client told the attorney that each time he tried to climb the stairs to the second floor of the couple’s home his wife would kick him back down. The man said to the attorney, ‘Doesn’t that show she doesn’t love me anymore?’ The attorney reflected on the situation and thoughtfully responded, ‘Either that or she just doesn’t want you upstairs.’”

So, to think like a lawyer means to objectively consider a situation from all sides and apply any relevant analogies to it. After three years of my own legal education at Indiana University, then ten years practicing law and forty years of being a judge, my conclusion is my brother was right and that lawyer-type analysis requires imagination and objective open-mindedness. I respectfully suggest we may want to try this approach to our COVID-19 impacted situation as some of our greatest legally trained presidents might have done. Yes, we must act now but we should do so with wisdom, courage and imagination.

Vision and objectivity have certainly been displayed by several of our greatest non-legally trained presidents. George Washington and Theodore Roosevelt readily come to mind. However, I would like to discuss with you a few of our legally thinking leaders who helped guide us through tough times by having the ability to seize opportunity from crisis by winnowing the wheat from the chaff.

Thomas Jefferson saw the Louisiana Purchase of 1803 and the Lewis and Clark Expedition of 1803-1806 as a means of expanding the United States from the Atlantic to the Pacific and discovering the untold resources of our country. Jefferson did this at a time when most Americans still feared, or too much admired, Great Britain. And he had to maneuver the funding through a skeptical Congress.

The Golden Spike

Abraham Lincoln was faced with the possibility of California seceding from the Union and with slavery remaining as a state option even if the South were defeated. He boldly issued the Emancipation Proclamation in 1863 and that same year signed the bill funding the Intercontinental Railroad. Lincoln did not live to see the golden spike driven at Promontory, Utah on May 10, 1869, but his use of grants of public lands and issuance of bonds helped preserve the Union he so admired.

Franklin Roosevelt saw the need for a great infusion of public funds for the education and re-employment of our out-of-work Americans during the Great Depression. Thanks to his vision America was much better prepared to respond to Japan and Germany in World War II.

John Kennedy started us on the elliptical route to the moon as financed with public monies. The vast number of jobs, products and conveniences the Space Program brought are still being enjoyed by our citizens.

I do not cite these heroes’ legal training as required for a novel approach to the Novel Virus. Millions of Americans can see that borrowing trillions of dollars to help people for a short time merely delays the pain. A cure requires applying our resources with a long view. We can invest in ourselves for the future while helping those in need now.

Germany’s Autobahn

One need not be a lawyer to see an issue such as COVID-19 from all sides and apply similar solutions as were used in similar prior crises. President Eisenhower was a West Point trained soldier who planned the greatest military invasion in history and could envision the benefits from a German Autobahn-type interstate highway system for America. And my friend, Warren Batts, is not an attorney but a rock ’n roll musician who suggests we could build a national high speed railway passenger system utilizing the middle portion of our already existing interstate rights-of-way between the separated lanes of traffic.

What we need, from our lawyers and non-lawyers combined, is the vision to prepare for our new society as it will surely be transformed by the Corona Virus. We will be changed but we can transform not regress. New skills can be taught using public funds as we did with the Lewis and Clarke Expedition, the Transcontinental Railroad, the Civilian Conservation Corps and the Space Program.

I realize these are not new ideas. That is my legally thinking point. You, Gentle Reader, will surely have several similar suggestions of your own, which I encourage you to share.

Transition Not Decline

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Our governmental systems, federal and each state, are designed to avoid rash decisions. We use systems that divide power into three generally equal branches that check one another’s powers and demand debate of important issues. Our fettered freedom created and maintains history’s most propitious culture. It is good to be an American. Of course, our system’s Holy Grail of restraining abuses of power results in diffused responses and partisan debates. That is also good as it helps prevent imprudent, irreversible actions. A concomitant element of our democratic system is that when faced with emergencies we often approach problems as a free people that the theoretical benevolent dictator might resolve quicker and better. COVID-19 comes to mind.

With this unprovoked surprise attack in January 2020 Americans responded as our system of government required. And as human beings one of our first reactions was to seek someone to blame. In a country designed to be a caldron of debate, assessing blame is a perpetual condition. We can call for charity for all but the better angels of our nature often seek partisan cover.

However, we have now had five months to accumulate evidence and analyze the problem. Maybe in hindsight some of our decisions could have been better but hindsight is only worthwhile if it is used to make better decisions now. Another, more cynical way to state this is: Never let a “good” crises go to waste.

I am reminded of what Jack Welch, the head of General Electric Company when it truly brought good things to life, said when one of his employees made a million dollar mistake. When Welch was asked if he intended to fire the employee Welch replied, “Of course not, I just paid a million dollars for his education.”

We have already lost about 100,000 people and are spending trillions of our treasure trying to help families and businesses. Most economic experts agree such an approach is necessary but almost all of them are chagrinned it is. In like manner, most medical experts side with the decisions to require social isolation to avoid spreading the virus, especially in certain at risk populations. But most scientists realize such preventative measures are themselves quite harmful.

Examples of military, economic and social disasters that have been used as opportunities for long-term good are legion. Gentle Reader, you will immediately think of many but I would like to cite just a couple.

President Abraham Lincoln abhorred slavery but was trapped in that most typical political snare, the realization that the ideal of equality was hostage to reality. Therefore, until he could issue the Emancipation Proclamation in January, 1863 under the guise of freeing slaves in the “belligerent states” as a military strategy, Lincoln had to publicly assert what the public would support. As Lincoln had said in a letter to newspaper magnate Horace Greeley only six months earlier:

“If I could save the Union without freeing any slave, I would do it,
and If I could save it by freeing all the slaves I would do it;
and if I could save it by freeing some and leaving others alone I would also do that.”
[August, 1862]

After years of arguing against slavery Lincoln saw the “War Between the States” and the military advantage of freeing only those slaves in states at war with the Union as an opportunity.

Similarly, during the Great Depression, President Franklin Roosevelt and Congress devised the Civilian Conservation Corps that used public funds to employ and train out-of-work young people to create and build public works. The CCC supported families, cared for natural resources and built marvelous public works such as Osage Hills State Park in Oklahoma. Another of the marvelous public works products was Hoover Dam built between 1931-1935. Roosevelt and Congress took a crisis and used it to develop millions of acres for agricultural and recreational purposes.

The reality is America did not avoid COVID-19. If there is anyone to blame, what good does it do to waste our energies and resources pointing our fingers and wringing our hands? Many people are already sacrificing, working, researching and striving to help themselves and others survive. As Patrick Henry exhorted his Colonial colleagues when the British were coming:

“Our brethren are already in the field.
Why stand we here idle?”

Or as that great public works president Theodore Roosevelt said:

“It is not the critic who counts …
The credit belongs to the [one] who is actually in the arena.”

In other words, let us recognize COVID-19 not only as the terror it is but also as an opportunity forced upon us. If we must spend trillions of dollars of our treasure helping our 35 million who are unemployed through no fault of their own maybe we can invest in new Hoover Dams while educating and re-training the unemployed for our new society. For many economists predict at least a third of that 35 million will not be able to return to their old jobs or businesses. Yes, we should help one another but most people prefer an opportunity to a dole. Our world is not going to return to 2019. Perhaps we can prepare for the “Brave New World” fate is casting upon us. America need not become the Rome described by Edward Gibbons in his classic Decline and Fall of the Roman Empire. With the proper and imaginative application of our resources perhaps we can transform, not decline.

Battle Fatigue

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We are at war. The actual combat began in January 2020. A declaration of war was not made by Congress as required by the United States Constitution. But virtually every member of the House of Representatives and the Senate, along with the President, has publicly asserted America is at war with COVID-19. Almost 90,000 of us have paid the ultimate price and almost 1.5 million are causalities. Many more losses are predicted.

While wars of any description are great stressors on people, our enemy in this war is truly virulent. If we were fighting another country we would know where to direct our fear and fire. With the Coronavirus we cannot even identify our enemy without a microscope and it is not wearing a uniform. Further, it often attacks us by attaching itself to casual social contacts, businesses, friends and even our loved ones. COVID-19 is a Mata Hari’s dream. Few are immune from its invidious, silent, unseen and sometimes deadly infection and even those who suffer no ill effects themselves can operate as Typhoid Marys.

Another major stressor people feel from the virus is the uncertainty we experience from the fear there is no end in sight. Most people can muster enough courage to combat major stressors if it is fairly certain they will end, even if that end is far off. However, with COVID our scientists keep cautioning us that we may never find a vaccine. After all, the first polio outbreak in America was in 1894 and we did not have a reliable vaccine until 1953.

In our war against COVID-19 we have already been in live-fire combat for at least two months. An official United States government report on battle fatigue among American soldiers in World War II declared:

“There is no such thing as getting used to combat.
…
“The general consensus was that a man reached his peak of effectiveness in the
first 90 days of combat [and] that after that his efficiency began to fall off …”
“Psychiatric casualties are as inevitable as gunshot and shrapnel wounds …”
“Most men were ineffective after 180 or even 140 days.”
As cited in John Keegan’s The Face of Battle at p. 335

America’s “Combat Exhaustion” over our war with COVID-19 is manifesting itself throughout the United States. A majority of Americans still fear the virus more than they question our multilayed, hodgepodge governmental response to it, whether federal, state, county or local. However, the stress of only 60 days or so of fighting the virus is already exposing fissures in our good will toward one another. Unless we come up with a successful Manhattan Project type response to the virus fairly soon perhaps we should develop some new strategies.

On JPeg Osage Ranch

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Henry David Thoreau (1817-1862) sought wisdom in living simply on Walden Pond outside Concord, Massachusetts just twenty-five miles from Boston. Thoreau spent two years there in a hut he built himself. Part of the wisdom he imparted then that speaks to our COVID 19 society now was the observation that government is best that governs least and less can be more in many aspects of life.

Since March 5, 2020 Peg and I have discovered that as long as the computers keep turning out our Social Security checks and Medicare continues to cover us a great deal of government is superfluous, at least for us. We used to dine out regularly and occasionally engage in person with friends and family. If the UPS driver is excluded, we are now as though on an unknown archipelago where armadillos play the role of giant sea turtles, coyotes stand in for killer orca whales, rattlesnakes imitate Komodo dragons and mooing cattle provide cacophonous concerts. We no longer commune in coffee shops and cafes but find ourselves quietly hiking up the rocky tor we call JPeg Peak or around the cloudy pond down from our cabin. Our interaction that once was among friends, family and general society is now almost solely between us. And while I have never considered myself misanthropic, I find solace in the absence of unlimited casual connections. Also, after lifetimes of sowing and sometimes reaping crops of worldly goods we are less compelled to further heed those siren calls. Our satisfaction is now found among non-speaking species and sweat producing projects where the rewards are temporary fatigue and long-term practicality. Netflix is our new opiate along with the rest of the socially distanced masses and George Orwell’s Newspeak dominates public discourse through the TV.

Our government that only a few months ago considered itself so essential to most aspects of our lives that it always took our tax tribute and sometimes rewarded us with services now declares its services suspendible until further notice but still collects the tribute. One might wonder if we could not permanently forego many of these costly bureaucracies whose only purpose may appear as “noisy gongs or clanging cymbals”, (1 Corinthians 13). When our government buildings lock us out for months at a time we may find there is no need to completely reopen them. Perhaps the trillions of treasure our government borrows from countries such as China could be reduced to levels that our grandchildren can afford to repay long after we have matriculated.

Neither Thoreau nor I call for a complete lack of government or society but instead better versions of both. As we gradually and carefully emerge from our individual Waldens perhaps we should take this opportunity to reevaluate what parts of our government and our general culture actually serve us. After all, what some may find to be the bitter medicine of isolation we are forced to take may not have just negative side effects if we properly apply the lessons taught by history.

It is not only our various tiers of governments, local to federal, that have exposed much of their avoirdupois by doing us the favor of shutting us out. Many businesses and other organizations have been forcefully confronted with the reality that much of what they do can be done better with less expense and fewer people or need not be done at all.

As we face the possibility that COVID 19 may give us few choices and all of those bad, perhaps we can salvage some good from our situation. Just as President Lincoln used the horror of the four years of the Civil War as the means to end slavery when he had not been able to persuade America to do so earlier, maybe we can take the harsh punishment of the Coronavirus and emerge with a more productive and more egalitarian society. Some experts estimate it will take up to four years to develop an effective, safe and universally deliverable vaccine. The most hopeful estimate is twelve months from January 2020.

When it comes to treatment we have a shorter estimated timeline but still will have several more months to go. Of course, any treatment has to be deliverable on a wide basis. If we soberly consider the scientific opinions, we probably have to conclude that our most reasonable currently available option is to institute and maintain social distancing for several more months and maybe for up to four years. Of course we can decide that approach is of more harm to us than the virus is. In that event we might concentrate on categorizing different at-risk groups and then apply different procedures to each one.

For example, Peg and I are in our seventies and our children, grandchildren and great grandchild are not. Maybe Peg and I should take the responsibility for our own health and proceed accordingly. If we were at war folks such as Peg and I would be the draftee soldiers and the rest of the country would support us with supplies and care as the non-soldiers, the less vulnerable members of society, carry on with their lives. As a country we have generally accepted that we are at war with this enemy. Perhaps we should address this fight as we would have in World War II. Peg and I have already volunteered by isolating since the beginning of March and believe it is our obligation to continue to do so until it is safe for us not to.

As the generation who benefitted most from the great sacrifices of the World War II generation, the Greatest Generation, we see it as fitting that we take our turn. And, frankly, a Walden Pond, or JPeg Osage Ranch, lifestyle is a lovely respite. We look forward to once again joining the rest of the less vulnerable society when science shows us the way. In the meantime we express our best wishes to those who can more safely join into all those social activities that Peg and I have already enjoyed for many years. That is, if that is their choice and they can safely do so.

Choices And Consequences

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Should you have read last week’s column you may remember the specific topic was the Electoral College and the general topic was our Constitution’s guarantee of our right to matter or free choice. Free choice, that is what separates humans from animals and America from many other countries. Our Founders designed a government where the ideal was: All matter, but none too much. Of course, as with most ideals, America’s vaunted guarantees of freedom of choice and equality for everyone remain as goals not yet attained. On the other hand, it is no small thing that America not only proclaimed these ideals but set them forth in writing at our founding. And we have struggled mightily since our Constitution was adopted on September 17, 1787 to live up to our ideals which were declared on July 04, 1776 to be: “That all men are endowed with the right to life, liberty and the pursuit of happiness”. Although the term “all” was advisory only.

To me these ideals come under the general category of a right to make our own choices but with an understanding our choices have consequences. These Civics lessons were burned into my psyche in a most graphic manner one day in Junior High School by one of my teachers who was straight forward, stern and strict; I liked and respected him. As he was also my Junior High football coach I always called him Coach even in the classroom probably because football was a lot more important to me than Civics. Coach’s successful coaching techniques relied heavily on those previously mentioned traits coupled with a no-nonsense attitude that victory came only through sweat. In the Pawhuska, Oklahoma school system of the 1950’s such was the general credo of the entire staff. And remembering my student days I confess such a system was necessary to force an education into me as my personal credo tended more toward the laissez-faire when it came to school work. Alas, the same was also true for some of my classmates including my friends Abby and Jack whom you will meet soon.

An example of how Coach’s attitude helped instill American history in me occurred during our Civics class section on the Civil War. Coach was one of those teachers who did not allow Political Correctness to cloud the facts. When it came to the reasons why the South seceded he taught that the immorality of slavery was a choice supported within our Constitution and the Civil War was about that choice. States Rights to determine whether to allow slavery, not slavery itself, was the gravamen of “The Cause” at the beginning of the war for the South and preservation of the Union, not the elimination of slavery, was the cause for the North. It was these competing choices and their consequences that brought about the Civil War that eventually both ended slavery and preserved the Union.

I probably would have remembered no more of these Junior High Civics lessons about States Rights and slavery than the other lessons I daydreamed through in school had Coach not given that particular lecture right after grabbing my attention with a long, thin paddle. That otherwise hazy school day began with Coach being called away from class for a brief meeting. When he left his discipline left with him and some of us fell immediately back into our natural educational state of benign ignorance.

My friend Abby who sat in the front row got up to talk to a girl two aisles over. When she did my friend Jack saw fit to sneak behind her and remove a thumbtack from the bulletin board then place it, business end up, on the seat of Abby’s desk. Somehow Abby sensed Coach was returning so she turned and hurried back to her seat. Abby sat down on the tack just as Coach entered the classroom and observed and heard Abby react appropriately.

The Coach affixed his terrifying stare on each of us individually and when he got to Jack, Jack folded like a pair of dirty socks. Coach called Jack up to the front of the class and ordered him to bend over and grab his ankles. From an assortment of paddles he kept hanging from the chalk rail Coach chose a thin paddle about two feet long and pushed a thumbtack through it. After the Coach vigorously applied paddle to posterior while Jack manly gritted his teeth in silence, we had our Civics lesson on choices and consequences concerning the Constitution, slavery, States Rights, the Union and the Civil War. I remember them well. And if any of my classmates from that day read this article I bet they do too.

Aposematism

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Aposematism. “Fair warning.” That is what that long Ancient Greek derived word means. “Stay away!” Or as it applies to skunks, “I stink; get back”. When one sees the white stripes among a skunk’s black fur Mother Nature apparently believes that is sufficient warning of skunks’ antisocial character. The Greeks used the term, aposematic, to identify any animal that had a way to warn off enemies.

My recent experience with skunks has led me to question whether skunks understand the “stay away” thing should go both ways. It also confirms my long held conclusion that the Ancient Greeks and Romans had already discovered over 2,000 years ago almost everything worth knowing.

The Ancient Romans provided the term for the scientific family we call skunks. It is Mephitidae which was based on the Roman god that referred to the malodorous gases emitting from swamps and volcanoes. It appears skunks had infiltrated the greatest cultures of Western Civilization. Of course, skunks and their relatives have not spared any other great cultures either.

But, Gentle Reader, we are not concerned with etymology, the origin of words, but with the origin of behavior, particularly skunk behavior as it relates to the family of skunks that has apparently decided Peg and I are their friends and that our home is, also, their home. What happened to that age-old skunk/human dynamic of don’t bother us and we won’t bother (or spray) you?

For three weeks now a family of skunks has been determined to live with us. This might not have been intolerable if the family of opossums and one squirrel that had already chosen our cabin as their home would have just moved on and given our crawl space to the invading skunks. However, reasonable retreat was not the opossums’ and squirrel’s decision. War was declared and you already know what the Dooms Day war weapon of skunks is. The skunks beneath our cabin deploy their spray frequently every night between about 10:00 p.m. and 6:00 a.m. depending upon the aggression of the opossums and the squirrel. Of course, Peg and I, whose only role has been to provide a warm dry area for all involved, get the collateral damage from this domestic terrorism. The stench wafts up through the floor and pervades every inch of our living space.

Peg used to tell me I needed to understand  the competing animals are simply some of our fellow mammals acting naturally. My attitude started out negative and has rapidly escalated to that of Bill Murray’s as the golf course groundskeeper in the movie Caddyshack and his battles with gophers. I just want them out from under our cabin and out of our lives. I realized I had slipped over the edge when I began to visibly rejoice each time I’d pass a dead skunk flattened on the highway. And Peg’s “tsk, tsk” admonition to me finally changed last night.

About 2:00 a.m. Peg heard a noise and got up to investigate. She opened the bedroom door that leads out to our porch. Fortunately she had switched on the outside light first. As she gingerly put a foot out the door a skunk came around the corner and headed into our home. Peg screamed, “Skunk!”. I grabbed my shot gun. The skunk kept coming. Peg slammed the door just as the skunk’s nose hit the glass. Peg and I are finally on the same page. Terminix, traps and anti-critter sprays and pellets are now our mantra. One positive thing is the opossums have decided they are through fighting and they and the squirrel have “moved on”. Now we just need to convince the skunks, starting with this “adorable” white with black stripe specimen that we caught last night. See the Euell Gibbons-like photograph Peg took.

Skunk!