After treating me to 8 weeks of basic training in the Texas summer heat the United States Air Force extended the misery by subjecting me to Indiana University football. In 1963 the Air Force stationed me in Bloomington to learn Hungarian. First they gave me a Top Secret Security Clearance. Silly me, I thought the reason was to keep secrets from the Soviet Union. I discovered the only secret being protected was that there are two halves to a football game; I.U. often plays only the first.
From my first IU football game in 1963 through 7 years on campus up to last night, August 31, 2017, I have repeatedly had my hopes raised in the first half only to see them crushed on the shoals of reality. At least IU has often been inventive and original in finding ways to snatch defeat from the jaws of victory.
My most painful memory is the game we lost after it was over. Yes, over! What happened was Indiana went ahead with less than thirty seconds left to play and was so excited, and surprised, to be ahead the team started celebrating during the kickoff and the other team ran the kickoff back for a go-ahead touchdown as time ran out. That was the first IU game I saw. It was an omen, a harbinger, a curse.
On the other hand I have watched numerous football games where we led at half time. What is it about IU football and the second half? We often play well and smart and tough the first half then have to invent a way to lose in the second. Perhaps our approach has been misguided.
Indiana University is a fine academic institution with a beautiful campus and generous support from Hoosier taxpayers. We have smart students and even smarter professors and we require our football players to go to class. Maybe we should demand a rule change based upon the empirical evidence. I suggest we simply walk off the field at half time and not come back. Then such debacles as 13 (Ohio State) to 14 (IU) at the half will no longer turn into 49 to 21 at the end.
William Shakespeare had Marc Antony preach these words at Julius Caesar’s funeral:
“The evil that men do lives after them; the good is oft interred with their bones.”
Act III, Scene 2
Antony went on to list Caesar’s accomplishments in addition to his being ambitious. There was some good, some bad. Perhaps the citizens of Rome should have erected a partial statue of Caesar honoring just the good parts.
This could be a solution to our current controversy over monuments to historic figures. A committee could be composed of people who admire the works of a now dead leader and those who find the figure’s behavior flawed. A few examples might be helpful.
George Washington survived Valley Forge, presided over the Constitutional Convention and refused the opportunity to be named an emperor. On the other hand he owned hundreds of slaves and helped enshrine slavery into our legal system. The Committee might consider cutting the Washington Monument in half.
Thomas Jefferson was responsible for the Bill of Rights that guaranteed individual liberty but only to twenty-one year old white males. He also owned slaves and had children by one of them. Today such an employer/subject relationship would result in severe censure. Perhaps the Committee might recommend the Jefferson Memorial be closed every other week.
As we search for unblemished heroes to honor we could consider Abraham Lincoln who issued the Emancipation Proclamation. However, he at first averred slavery would be preferable to the disintegration of the Union and the Proclamation did not free all slaves just those in the states of the Confederacy. The Committee could maybe have a disclaimer added as a placard around his statue’s neck.
Andrew Jackson committed adultery, captured Seminole Indians under a flag of truce and as president created The Trail of Tears. On the other hand, he was a courageous and victorious military leader. A short bronze bust could replace his heroic sized statue.
As for Mount Rushmore the Committee would have to remove at least 3 of the 4 figures. Of course, Teddy Roosevelt had a penchant for shooting animals which might upset the ASPCA; so all 4 might have to be erased.
Right here in Posey County, Indiana we have a dilemma about what to do with our most famous citizen. Alvin Peterson Hovey was once Posey Circuit Court Judge, a Civil War general for the Union and our only governor. Unfortunately, he also was instrumental in helping to cover up the murders of seven Black men in October 1878. One of those Black men was shot and stuffed into a hollow tree on a farm owned by Hovey. Will the Committee have to remove the glowing patina from Hovey’s bronze in the Indiana State House?
One might look to Jesus as the paragon of virtue but even he got angry and threw the moneychangers out of the temple. He, also, voiced his hope that the cup of his great travail might pass from him. On the other hand, apparently no one knows what Jesus looked like unless one believes the Shroud of Turin is a clue. I guess the Committee would not be able to find any statues of Jesus to modify.
It appears that history has not provided us with any perfect examples to honor. Maybe the Committee will have to suggest that all statues be modified by substituting feet of clay.
A nation is its culture and experience, its history. That is what determines its character. The same is true of the world. We learn or do not learn from the mistakes and accomplishments of ourselves and those who have preceded us. If we learn, we can accomplish more. If we do not learn, we may repeat mistakes. To learn from the past we must know and understand it. If we hide the past, we do not change what has happened but we may live to regret that we no longer remember it.
ISIS or ISIL, the Islamic State of Iraq or the Islamic State of Syria, has been culturally cleansing the ancient Middle East for several years. Its members are offended by statues, monuments and artifacts that once, before ISIS destroyed them, carried within them thousands of years of human knowledge and culture. ISIS could not bear to allow memories of ancient or even contemporary peoples who had the temerity to have different beliefs from ISIS. This is particularly puzzling with religious differences since ISIS’s belief system is based on its particular interpretation of Islam which could not have existed before Mohammad who lived from 570 A.D. to 632 A.D. Yet ISIS viciously attacks the artifacts and history of cultures thousands of years old.
Of course, ISIS as all such denigrators of history, is not changing the facts of history. ISIS is merely proving their own ignorance of it. Such actions are much as children who put their hands over their eyes or duck their heads under the covers in an attempt to convince themselves that because they do not see something it never existed. Or as ISIS and some other people do, they destroy historical artifacts and try to convince themselves and others that a certain history never happened. Of greater concern is the very real possibility their actions will lead to the loss by future generations of an opportunity to learn from that history.
To preserve and observe a historical artifact, a temple to Baal that was 5,000 years old or a Christian church that was 2,000 years old for example, is not to worship Baal or Jesus but is to build upon and learn from history. To destroy artifacts of a nation’s past does not change that past but it may result in the nation repeating past errors because those errors are out of sight and therefore out of mind.
History teaches us that power waxes and wanes and that who is on top today may be oppressed tomorrow. The burning or banning of books, say the Bible for example, does not invalidate a book’s content. It does validate the lack of vision of those who arrogate to themselves the sole interpretation of truth or history.
Each of us has the right to venerate or denigrate whatever philosophy, religion or creed we wish. However, just because what happened in history may be offensive to us does not mean we should attempt to establish such history never occurred. Haven’t we lived through enough of such culture destroying behavior to recognize the danger in such a course?
Perhaps next week we can revisit such a revision of history that occurred right here in Posey County, Indiana and delve into what that revision might mean to us today
If you read last week’s column (hey, I can dream can’t I), you know I am preparing to help the National Judicial College teach Rural Court Judges. Last week we talked about the theory that our law arises from our history and culture, our Volksgeist. Or as Oliver Wendell Holmes, Jr. (1841-1935) put it, “The life of the law has not been logic; it has been experience”.
Posey County, Indiana has produced several influential thinkers on what our law should be and do, that is, what is the proper purpose of our legal system? Our most famous citizen was and still is Alvin P. Hovey (1821–1891). Hovey was an attorney, a Posey Circuit Court judge, a general and the only governor to ever come from Posey County (1889–1891). He also sat on the Indiana Supreme Court when it decided a poor person was entitled to the same protection of our laws as a rich person.
Another of our famous predecessors was the brilliant and courageous Frances (Mad Fanny) Wright (1795–1852) who gave her entire adult life to an effort to free slaves and secure equal rights for women. Unfortunately, her good deeds were often overshadowed by her lifestyle. Still she fought for those who could not fight for themselves.
Frances Wright’s companion and fellow traveler was former Congressman Robert Dale Owen (1801–1877). Owen knew Abraham Lincoln from having served in Congress in 1843–1847 while Lincoln served in Congress 1847–1849. Owen’s 1863 letter to Lincoln urging him to free the slaves is credited with influencing the President to issue the Emancipation Proclamation.
Robert Owen and Alvin Hovey were also Posey County’s delegates to the Indiana Constitutional Convention of 1850–1852 that produced our 1852 Constitution in which our legal system demands fair and equal treatment regardless of a person’s ability to pay. The Preamble sets forth the first principle of our government is to establish justice and, as set forth in Article I, “That all people are created equal”.
Article I, Section 12, guarantees equal justice to rich and poor alike:
“All courts shall be open and every person for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.”
While there are many reasons we need justice from our legal system, I suggest the two most important areas concern whether our government wants to lock us up or take away our children. Of course, there are many wealthy people who are charged with crimes and even some wealthy people who the rest of us believe should lose their children to state care. However, it is simply a fact that most people who go to jail are poor as are most parents whose children are removed by the courts.
It is usually the poor and powerless who are caught up in the terrifying, confusing and expensive legal system. And frequently these poor people are not highly educated nor do they have friends in high places. They need help and both Indiana and federal law guarantee that help to them, including representation by an attorney. If the rest of us want to lock someone up or take away their children, the least we can do is follow the law ourselves and provide these people with legal assistance as our Constitutions demand. This is not only required by law, fair, just and reasonable, it is good for all of us. If the innocent are not locked up or the guilty are fairly sentenced or children are not removed when unnecessary or when necessary are removed carefully and with efforts to help the children and the parents, such justice is in our own self interest. In other words, not only is it right, it is smart and in the long run saves us money as it helps people recover so they may contribute to society. And it helps families remain united or reunite.
If we can spend trillions on matters beyond our borders, we should not be mean-spirited and self-destructive with our own citizens. Plus, it complies with the law, especially those state and federal Constitutions some of us are fond of saying we revere.
During August and September this year, as for several years before, the National Judicial College will be presenting Internet courses to judges from across America. Other members of the NJC faculty and I will discuss with student judges via computer and telephone how to bring more just results in our courts.
The faculty is comprised of volunteer judges and staff in Nevada, Colorado, Indiana, Mississippi and Tennessee. My experience over several years of judging and continuing judicial education by both Internet and brick and mortar classes has led me to the conclusion judges should not concentrate on techniques but rather systems of thought, i.e., legal theory. “How to” knowledge is helpful but “why to” understanding is vital.
Friedrich Karl von Savigny (1779 – 1861) was a German legal philosopher who believed a nation’s legal system arises from the volksgeist or national spirit of a people, that is, law is determined by the unique character of a nation. Or, as put by the American legal philosopher Oliver Wendell Holmes, Jr. (1841 – 1935):
“The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”
Common Law is a term used to mean judge made law, law developed through the courts, not the legislature or an executive such as a king.
America’s common law in the years before the Revolution of 1776 arose as an effort by American judges, lawyers and juries to curb the abuses of King George, III, and the British Parliament. The 1735 case of John Peter Zenger (1697 – 1746), a New York printer who published articles about the king and parliament, illustrates the national spirit of the Colonies. Zenger was charged by the Crown with seditious libel but a jury refused to find him guilty because what he published was true.
This American spirit of rebellion permeated the Declaration of Independence and is enshrined in our Constitution that was designed to keep government power in check and protect individual citizens.
Our volksgeist is our sense of a distrust of centralized power and the preservation of individual civil rights. America and her judges need constant reminders of where we came from and who we are. That’s what I plan to both study and teach.
I recently received a respectfully worded request for excusal from jury duty. I granted it. The potential juror claimed a religious exemption. I am not a theologian although one of my nephews just received his doctorate in Theology from Oklahoma Baptist University. He makes no claim for religious exemption from jury service. I say to each his own.
Should a person assert sincerely held beliefs that her or his god, faith, philosophy or belief prohibits jury service, so be it. Such positions, if rooted in the First Amendment, are fine with me. Religion should not be involved in our legal system. That’s what James Madison, Thomas Jefferson and the rest of the revolutionaries meant to protect.
Those of you who are called for jury service and just find it inconvenient but not in violation of any religious test may think it is unfair to excuse persons who enjoy all the benefits provided by America but refuse to participate in a core responsibility of citizenship. You might feel the same about conscientious objectors to military service or those who refuse medical treatment for their children on religious grounds.
I see such decisions much as I do allowing protestors to demonstrate in support of or against things the majority may oppose or favor. If the Constitution does not protect those with whom most citizens disagree, why have a Constitution? Those whose beliefs fall within the parameters of generally accepted beliefs need not be concerned with their free exercise.
The gracious acceptance of those views most of us adhere to calls for little praise. However, America shines like the beacon most of us want Her to be when She protects those who need protection from the rest of us.
As to the potential juror, I say, and by the way so does the Supreme Court, if you are sincere in your minority belief, the majority will respect your right not only to believe it but also to exercise it.