James M. Redwine

Abraham Lincoln

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.

Two Auspicious Days

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The seven day period beginning April 08 and ending April 15 has two important days, one joyous and one sad. April 08 is Peg’s birthday. Please wish her happiness and strength as she deals with having me home a lot more now. As to the other significant anniversary, Abraham Lincoln died on April 15, 1865. As if paying our taxes on April 15 was not already sad enough.

Of course, there is a certain historic connection between federal income taxes and President Lincoln. He helped institute the first federal income tax to pay for the Civil War, which was fought to preserve the Union. However, after the Civil War ended the income tax was also ended until 1916 when it was made permanent by the 16th Amendment to the Constitution.

Kentucky, Indiana and Illinois claim Lincoln for our own but hardly anyone lays claim to the income tax. As Peg and I will wait until 11:59 p.m. on April 15 to pay ours we assume we will have a lot of fellow travelers. It is widely accepted that the major need for America to impose taxes on itself is to pay for wars or the preparation for potential wars. Oh, we expend a lot for various other things too such as salaries and expense accounts for Congress people, Executive Branch workers and judges, health care and the clean up after celebrations such as inaugurations and ticker-tape parades to honor sports teams. I am assured by those involved in these endeavors our hard earned money is well spent.

If you are like me you put Presidents George Washington and Abraham Lincoln in a separate rarified class from other presidents. And while George Washington never visited Posey County, Indiana as did Abraham Lincoln (thanks to my friend and historian Jerry King for this information), I note Washington managed to birth our nation without a federal income tax. Anyway, I forgive Lincoln since he took the time to dedicate a bridge in Savah, Posey County, Indiana in 1844 when he was campaigning for Henry Clay (1777-1852); Clay lost. Maybe those early Hoosiers suspected Abraham Lincoln might someday start an income tax.

Well, income taxes and the Civil War aside, Abraham Lincoln still has much to teach us about humility, compromise, mercy, justice and just plain decency. And as for Peg’s birthday, I am going to celebrate it by thanking you Gentle Readers who have been kind enough to commiserate with her as she has often served as a foil in these articles over the many years!

Hoosiers and Slave Auctions

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Gentle Reader, you will, of course, remember the Gavel Gamut column of December 05, 2005 where one of Posey County, Indiana’s most infamous brawlers was mentioned. One Tom Miller was fond of drink and when drinking was fond of fighting. In the years just before the Civil War old Tom would get liquored up and lick whoever had the misfortune to run into him on the streets of Mt. Vernon, Indiana. As described by John Leffel in the Western Star newspaper Miller would, “Pace the streets of Mt. Vernon with his coat off, sleeves rolled up, his shaggy breast exposed and his suspenders about his waist.” According to the editor, Tom always bellowed the same challenge, “I’m a mean man, a bad man and I orter to be whipped, I know, but whar’s the man to do it?”

Tom Miller was only one small part of our Posey County and new state of Indiana’s reputation for tumultuous living. The sobriquet, “Hoop Pool Township”, was fairly earned by Posey County brawlers who drove visiting boatmen away. And as for frontier justice in Indiana, some experts assert our Hoosier nickname came about from the proclivity of Indiana rowdies to bite off ears and spit them out onto barroom floors.

I am indebted to columnist Erik Deckers who set forth this theory of the origin of the word “Hoosier” in his article contained in the publication Here and Wow, Indianapolis! Vol.1, No. 1, 2018. At page 22 Deckers attributed this possibility to Indiana’s poet laureate James Whitcomb Riley (1849-1916) of When the Frost is on the Pumpkin fame who claimed that early Indiana folks would frequently gouge out eyes or bite off body parts which would litter a barroom floor and when the next day someone would kick the removed piece of fleck they’d ask, “Whose ear?”

If I had not dealt with so many cases in court where the behavior of the combatants resembled such activity I might look askance on such a theory. However, I can see some merit to Riley’s analysis.

Well, onto another topic as discussed in last week’s column. You do remember last week’s column, right? Okay, it involved military service and concentrated on my Great Great Grandfather, John Giggy who was a stone mason and farmer from La Grange, Indiana who fought all four years (1861-1865) in Company H of the famed Iron 44thIndiana Volunteer Infantry.

Before being wounded at both Shiloh and Chickamauga and before he saw his first shot fired he and his outfit witnessed a sad spectacle in Henderson, Kentucky that helped them understand one of the main reasons they went to war. Kentucky did not secede, but it did have legal slavery until 1865. In fact, one reason Tom Lincoln, Abraham’s father, moved his family from Kentucky to Indiana was to avoid competing for work with slave labor. Slavery was part of the legal and social culture of Kentucky. The young Hoosier farm boys from northern Indiana who were used to doing their own labor had not had direct knowledge of The Peculiar Institution until they personally observed a slave auction in 1861 just across the Ohio River as they were making their way south:

“It was a strange pitiful sight that of women and little children standing upon the action block to be sold as human chattles. They came wringing their hands and with tears and sobs, lamenting their cruel fate. The soldiers stood near filled with pity and indignation but restrained by law and discipline. Slavery existed at this point in its mildest form. Here were a dozen or more large tobacco factories. The blacks were required as a daily task to strip 400 pounds under penalty of the rod. Children of ten years were given this task. Work hours extended from 4 a.m. to 8 p.m. In each room was an overseer whose presence was a threat. Some negroes were well dressed, others ragged. Attendance at church was allowed and many were Christians. They regarded the coming of the soldiers as the precursor of their liberty.”

As to the name Hoosier, Posey County’s most famous citizen, Major General Alvin P. Hovey, while in command at Shiloh came across a Union sentry on a dark night who asked for the password. Hovey was just getting his men to that position and had no idea what password was being used. When the sentry asked, “Who goes there?”, Hovey improvised what he hoped would be an acceptable password and responded, “Hoosiers”. The sentry said, “Welcome Hoosiers.” Apparently, we Hoosiers have been welcomed as such for a long time.

A House Divided

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Most of us know of and many can even recite President Abraham Lincoln’s Gettysburg Address delivered during the Civil War on November 19, 1863. And most of us know of and probably sometimes paraphrase his House Divided speech delivered when he was a candidate for United States Senator in Illinois (June 16, 1858). Lincoln lost to Stephan Douglas whom Lincoln later beat for the presidency in 1860.

​The topic might be a little heavy for a short weekly newspaper column but with our country’s birthday this week and the country in a perpetual state of mutual invective I humbly submit it is worth our attention.

​In an attempt to pare down the extremely complex and emotionally charged issues of our country’s Negro slavery, the Civil War, our current status in re civil rights and the cacophony of our public discourse, I will just refer to a few items: (1) The United States Constitution, (2) the Missouri Compromise, (3) the Kansas-Nebraska Act and, (4) the Dred Scott case as decided in 1857 by the U.S. Supreme Court. If you are still with me, I caution it gets worse.

​Originally slavery was recognized as a States Rights issue, i.e., if a state wanted slavery and wanted to be part of the Unionthat was okay. But as a device to apportion the number of a state’s congressmen, the Constitution declared Negroes in eachstate would be counted as 3/5 of a person for census purposes. However, African Americans were not made citizens until the Civil War via the Thirteenth, Fourteenth and Fifteenth Amendments. Of course, Indians were not included, and women of any race could not vote until 1920 via the 19th Amendment to the Constitution.

​Because of the great divide between free and slave states, the Missouri Compromise of 1820 was enacted, although many argued it was unconstitutional. The Missouri Compromise allowed for the admission of Missouri as a slave state and Maine as a free state and prohibited slavery north of a certain parallel (36°30’) but allowed it below that border.

​This worked alright until heightened tensions arose between slave and free states so Senator Stephan Douglas in 1854 got the Kansas-Nebraska Act passed, which allowed for the admission of the states of Kansas and Nebraska to the union with the provision of slavery by popular majority vote of each state’s citizens. Of course, this was not within the spirit or the substance of the Missouri Compromise.

​Then in 1857 the United States Supreme Court decided the Dred Scott case. Scott, was a slave whose owner had taken Scott with the owner to live in a free state then returned with him to Missouri. Scott sued for his freedom claiming that once he was in a free state he was then after always free.

​Precedent as old as a decision from colonial times in 1772, the Somerset case, was clearly with Scott and most legal authorities, including the lawyer Abraham Lincoln, expected the Supreme Court to declare Scott free. How wrong he and many others were.

​Chief Justice Roger Taney a former slave owner and fierce opponent of the Missouri Compromise, ignored established precedent and used Dred Scott’s case to declare no Negro could ever be a citizen of the United States and that the Missouri Compromise was unconstitutional. Taney’s overreaching andpoorly reasoned opinion led directly to the Civil War four years later.

​According to the historian Paul Finkelman who wrote the book Dred Scott v. Sandford, A Brief History with Documents:

“By the 1850s Taney was a seething, angry, uncompromising supporter of the South and slavery and an implacable foe of racial equality, the Republican Party, and the anti-slavery movement.”

See p. 29

​

​Taney declared that Blacks:

“[A]re not included and were not intended to be included, under the word ‘citizens’ in the Constitution… [T]hey were at that time (1787) considered as a subordinate and inferior class of beings….”

ibid p. 35

​

​Stephan Douglas held the position the question of slavery should be a matter of state option. Abraham Lincoln on the other hand foresaw that a nation half-slave and half-free, that is a nation divided against itself, could not survive. We are still working that out after 242 years. Happy Birthday!

The Harder Right

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Gentle Reader do not despair. We have reached the final week of our discussion of the Internet course for Rural Court Judges. You will no doubt recall our previous sessions on the scintillating topics of Rural Court Case and Court Management. Well, the best is yet to come. I only wish we could hear from the student judges from Alaska to Maryland who attended the seven week National Judicial College course that I helped teach. Surely they were filled with the same excitement I felt as an Indiana University freshman law student during Contracts classes, perhaps much as you have been while reading Gavel Gamut the past few weeks. But, all good things must come to an end so let us summarize what we have studied.

We started with the proposition that the most essential criterion for being a Rural Court judge, or any judge, is good character. Intelligence and industry are fine attributes but ring hollow if a judge cannot choose the harder right over the easier wrong. As Socrates told his Athenian judges who tried to have it both ways, “Your job is to do justice, not make a present of it.”

You may remember the prescient observation made by Alexis de Tocqueville (1805-1859) when he wrote of his impressions of America in Democracy in America: “In America practically every political question eventually becomes a judicial one.” Of course, for those questions to be answered properly the judiciary must be fair and impartial and the public must have confidence they are; politics must not enter into a judge’s decisions.

That astute one-time Hoosier Abraham Lincoln who knew a little bit about politics and a lot about judging saw the legal profession’s role as to first be peacekeepers. To keep the peace judges must enjoy the public’s confidence in the absolute impartiality of judicial decisions. Character is the cloak that must robe a judge.

And when a judge is faced with those difficult cases where he or she is tempted to slip off the blindfold and tip the scales of justice, the only refuge a judge has is his or her character. That is what judges heard during our Internet course and what Bobby Kennedy meant when he said, “Some see things as they are and ask, why? I dream what things could be and ask, why not?”

Of course, society often rewards those of weak character and severely punishes those who choose the harder right. But that pressure is what judges must withstand. So where we start and end our course on Rural Court judges is the same proposition: judges must keep the blindfold on and their thumbs off the scale.