James M. Redwine

America

One Game At A Time

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Gentle Reader, should you have read last week’s Gavel Gamut you may recall that another reader, Dr. Michael Jordan of Osage County, Oklahoma, sent a letter to the editor asking that I address the topic of immigration. No, I do not know why, but after a couple of minutes of reflection I thought, “Why not?” So here goes. Our current immigration mess should not be any more challenging than Winston Churchill’s view of the old Soviet Union that he called, “a riddle wrapped in a mystery inside an enigma”. A few quick paragraphs ought to suffice. Let’s start back in the 1960’s when our national immigration policy began to gradually change from one based on admitting immigrants based on entrepreneurial or economic qualifications, that is, what does the immigrant have to offer, versus admitting family members to reunite with previous family immigrants already in America.

According to George Mason law professor F.H. Buckley:

“U.S. immigration policies were radically changed in 1965, when national origins quotas were replaced with preferences for family reunification. People from countries that had recently supplied immigrants were given a leg up, while those from countries that had supplied immigrants centuries before found it much harder to get in.

In the 1950’s two-thirds of legal immigrants came from Europe or Canada, by the 1990’s that figure had fallen to 16%. During that same period, the percentage of legal immigrants from Latin America and Asia rose from 31% to 81%.”

See The American Illness, Essays on the Rule of Law

By F.H. Buckley at p.51.

Buckley has written extensively about immigration to America. Ironically, Buckley is himself an immigrant from Canada. That aside, in his above referenced book, Buckley posits that part of the immigration solution is for the United States to return to our pre-1965 immigration policies. Buckley avers that USA law used to determine admittance of immigrants on a general policy based on national origin quotas and economic benefits to America, but changed to a policy of family reunification being the main factor. This led to a change from the long-time admission of immigrants mainly from Europe and Canada to those mainly from Latin America and Asia. Buckley states:

“What is uncontroversial is that the United States could do a better job of competing for the highly qualified immigrants who are more likely to confer economic benefits on natives. America is exceptional in the way in which, more than any other first world OECD (Organization for Economic Co-operational and Development) country, it favors family based immigration and admits relatively few employment-based immigrants.

….

“A move to a more entrepreneurial immigration system would likely offer non-economic spillover benefits. Economic immigrants are less likely to commit crimes or to rely on the welfare system, and for countries that favor them, immigration is less contentious. The natives are more likely to welcome immigrants, who in turn are more likely to assimilate to the natives.”

Buckley: pp. 51-53

Buckley’s book was published in 2013, but it has an eerie prescience to today’s southern border crisis of children being dropped over walls and left alone in the desert in hopes of somehow uniting with their family members already in the United States.

Of course, this does not resolve the immediate situation. We must follow our Constitution and provide due process to those who are legitimately seeking asylum. We have the means to provide humanitarian relief as we abide by the laws and policies we established until we change them. Deserving immigrants should be welcomed without prejudice as to national origin, race, ethnicity and faith or lack thereof and without encouraging the breakup of families. A gradual, fair return to an entrepreneurial immigration policy should begin now. And before anyone projects a conclusion that Buckley or anyone else is saying Canadians and Europeans are superior to Latin Americans or Asians, let us be clear. It is not one’s race, ethnicity or national origin that should determine whether an individual is admitted into our country. The criteria should be mainly whether the aspiring immigrant can be a benefit to America.

Through the fog of one of my undergraduate psychology courses at Indiana University I loosely grasped the concept of projection. One aspect of Sigmund Freud’s theory of projection is that we humans subconsciously cast upon others our own failings as a self-defense mechanism. When it comes to America’s approaches to the problems of immigrations and debates that have raged since at least 1620 and Plymouth Rock, I submit Dr. Freud would diagnose many of us as projectionists. But before we address what Emma Lazarus called the Mother of Exiles, the Statue of Liberty, and the “…[H]uddled masses yearning to breathe free, The wretched refuse of your teeming shore”, let me suggest an analogy between immigration and environmentalism based on an old adage.

In the simplest of terms, the green debate is between those who want to build a house in the woods and those who already own a house in the woods. And with immigration, the competing positions are often those held by we whose ancestors immigrated here versus those who would like to become ancestors for those who may later immigrate here. And while we have certainly managed to maintain many raging controversies about whether certain classes of peoples, Irish, Catholics, Chinese, Muslims, Italians, even people indigenous to North America, and numerous other groups, have a right to exist in the United States, our current concentration involves our southern border.

Some of us might project our own fears, prejudices and greed onto one side or the other of the issues. However, as with every extremely complex problem it may require much more time, effort, and goodwill than most of us care to invest. It is easier for us to simply say those who disagree with us are motivated by hate or ignorance. Hard work is never as appealing as harsh rhetoric. Facts are the enemy of bombast. A knowledge of the facts on immigration is vital to constructively addressing the problem. Just as catcher Crash Davis advised in the movie Bull Durham, we need to concentrate on the here and now and take things one “game” at a time.

Messages From Space

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President Joe Biden held his first news conference in the White House East Room on 25 March 2021. Twenty-five reporters were allowed to attend; the President took questions from eleven of them. The news conference lasted one hour. Each reporter began their questions as follows: “Mr. President”. Is not the Presidency of the United States prestigious enough? How about “President”?

We do not say Mr. Judge, Ms. Senator or Mr. Congressman. Mr. President sounds like a relic from the days our mothers would begin their scoldings of their young children with, “Now listen here, Little Man” or “Little Lady”. One knew to expect bad news when our mom started a one-way conversation with such an address. Perhaps we can drop the feigned aggrandizement or gilding of the lily. Calling our president, President, is both respectful and democratic enough.

But complaints about titles whether from me or Meghan Markle is not the focus of this article nor is it about the current blockage of the Suez Canal. On 24 March 2021 the super-tanker vessel, the Ever Given, owned by the Evergreen Company became lodged into the bank of the canal. The claim is high winds blew the ship off its pathway through the 120 mile long, 205 meter wide and 24 meter deep engineering marvel that has allowed ship passage between Asia’s Red Sea and Europe’s Mediterranean Sea since 1869.

The Suez Canal was the idea of Ferdinand de Lesseps who was France’s Consul to Egypt in 1854. The canal is built across Egypt’s Isthmus of Suez. About 12% of the world’s yearly shipping trade traverses the canal and according to FOX Business News, each hour the canal is unavailable costs the world’s economy $400 million. It may take days or even weeks before the Ever Given can be dislodged and realigned. However, such mundane topics as Presidential politics and the fate of the world’s economy are not our concern right now.

What this article is about is my conclusions about the meaning of the mysterious rhythmic radio blasts originating from beyond our Milky Way Galaxy about one-half billion light years away. First noticed about ten years ago these FRB’s, fast radio bursts, appear unannounced and unsolicited at an aggravating but unpredictable frequency. The blasts are short and one has no way to stop or avoid them. If you, Gentle Reader, as was I, were trying to pay attention to President Biden’s news conference or to reports and analyses of how the Suez Canal blockage might result in a new toilet paper shortage crisis, you might have received numerous FRB type telephone calls.

Well, as Fareed Zakaria might say, here’s my take. Someone, somewhere way out there is so concerned about our welfare they constantly are offering an opportunity for us to extend our vehicle warranties.

A Delicate Balance

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Five-foot, four inch tall “Little Jimmy”, James Madison, Jr. (1751-1836), applied his gigantic intellect to melding the Natural Law theory of John Locke (1632-1704) and the Separation of Powers theory of Charles Montesquieu (1689-1755) into the Constitution of the United States. Locke and Montesquieu postulated that all things being equal no person should harm another in his/her life, liberty, health or possessions. They, along with Madison, also believed that every person who has power is apt to abuse it. Therefore, governments are necessary to keep individual power in check but the power of government must also be kept in check.

According to Edgar Bodenheimer (1908-1991) in his treatise on jurisprudence:

“The basic idea of the American Declaration of Independence as well as the Bill of Rights is the recognition of the natural and inalienable rights of life, liberty, and property, as conceived by Locke, while the main body of the United States Constitution is a practical application of Montesquieu’s doctrine of separation of powers. The connection between these two doctrines in the American government is made by the theory of judicial review. The United States Supreme Court has held that, in order to guarantee the enforcement of natural rights, the power to make laws must be separated not only from the power to execute laws, but also from the power to review laws with their regard to their conformity with higher principles, as recognized by the United States Constitution. Thus, in the United States the courts, and especially the United States Supreme Court, have assumed guardianship over natural law.”

See Bodenheimer, Jurisprudence at p. 146

This separation of powers has served America well since 1789. As is to be expected in matters as complex as government and politics the powers of the three branches have each waxed and waned from time to time. However, we have always managed to keep our democracy by remaining moored to the rock upon which it was founded. Just as our founders recognized that individuals and governments will abuse power unless checked, they also recognized the danger and guarded against any of the three branches having unfettered power. The wisdom of Madison, et. al., is once again being tested. Has the Executive Branch gone outside its traces and incited violence against the Legislative Branch? Has the Legislative Branch blurred the boundaries that should keep all three branches separate by both charging an impeachment and then filling the role of the Judicial Branch by having one of its own members serve as the presiding officer at the trial? And, has the Judicial Branch been marginalized because the Chief Justice of the Supreme Court will not be serving as the neutral and detached trial judge as designed by our Founders.

For as Bodenheimer points out, “Any abuse of its power by the legislature should be curbed by the Judiciary Branch of the government, to which falls the duty of declaring void all statutes which are repugnant to the Constitution.” See Bodenheimer, Jurisprudence, at page 148. Perhaps Chief Justice John Roberts and the rest of the Supreme Court are anticipating being confronted with such an issue later.

The crimes that were committed on January 06, 2021 are being investigated and several alleged perpetrators have already been identified and charged. Numerous others will and should be. America’s normal criminal justice system can fairly and efficiently provide due process to those involved. If Donald Trump committed any state or federal crimes either on or before January 06, 2021 he can be prosecuted separately from the impeachment. And if a pardon is considered it would cover only federal offenses.

In our current test of our charter’s application, the Legislative Branch has filed an article impeaching the head of the Executive Branch, former President Donald Trump. It is alleged he engaged in:

“[H]igh crimes and Misdemeanors by inciting violence against the Government of the United States” on January 06, 2021 and for in the months preceding January 06, 2021 repeatedly issuing false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the America people or certified by State or Federal officials.

The Article of Impeachment was returned against President Donald Trump on January 13, 2021 while he was still the acting President. On January 25, 2021 after Donald Trump’s term had ended, the Article of Impeachment was sent to the Senate for trial. The Senate has set the trial to begin February 09, 2021 with Senator Patrick Leahy, Democrat from Vermont, to preside and the senators to serve as jurors.

Article I, Section Three, of the U.S. Constitution provides that in the trial of the President of the United States the Chief Justice of the Supreme Court shall preside. For reasons not yet fully explained, Chief Justice John Roberts will not be involved, so only two of our three equal branches of government will be embroiled in this matter of grave national concern. It is suggested that this is because Donald Trump is no longer President. However, that does not take into consideration the bed rock reason why the Founders made it mandatory for the Judicial Branch to be involved.

The impact of this omission upon public confidence in the fairness of the process is worthy of consideration. After all, it is not Donald Trump’s fate that is most important, but the country’s faith in the process that determines that fate. However, this faith might be shaken by a trial where the role of a “neutral and detached magistrate” is filled by a member of the body that both files and prosecutes the charge. Symbolism is important and a level scales of justice is one of our nation’s most potent and delicately balanced symbols.

Attenuation

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From The Ford Library Museum Website

The season of our discontent is set to begin February 08, 2021. Soon we will be forced to talk to our spouses again and eat an actual meal instead of gobble chicken wings during commercials or at half-times. I can feel the ennui closing in. ♫ It is a long, long time from February to September ♫ when football season returns. It is not that I have no interest in other sports, but other than the Olympic downhill ski race and the baseball World Series I just do not want to watch them on television. On the other hand, I will gladly spend four hours watching Goadie Bowl Tech and Reyfert Hogart Junior College drop passes and fumble kick-offs. Such pursuits as yard work and household chores quickly fade in the afterglow of a football game. Ah well, perhaps it will give me an opportunity to ask Peg what she has been doing since September 2020. Also, I might give some thought to such things as our battle with ’Ole 19 and our political malaise.

Perhaps I can combine my concerns about the end of the football season, the Corona Virus and such political madness as the January 06, 2021 assault on our Capitol including its impending impeachment imbroglio. After all, President Gerald Ford was the hero or villain, choose one, of the President Richard Nixon impeachment controversy and President Lyndon Johnson often alleged Ford’s decisions were affected by Ford’s having played too much football without a helmet. Gerald Ford played center on the University of Michigan football team. Ford graduated from college in 1935, an era when leather helmets were in vogue. For safety reasons leather has been gradually replaced with the rock-hard plastic we now use. Hello, spearing or targeting penalties and TIB’s (traumatic brain injuries). However, from an esthetic viewpoint, the hard plastic provides a better surface for team logos and sticker awards for hard hits.

Football and politics do have some similarities, and when it comes to dealing with misdeeds in either, the legal concept of attenuation is relevant. With football a hard hit with his helmet by one player against the head of another player can be analyzed by re-tracing backwards from the hit. While not even the player himself, or now perhaps herself too, may know for sure if he intended permanent harm, the referees and the re-play booth can carefully review and discuss the event. This may disclose guilt or innocence of the player but is he the only one to blame?

The fanatics who cheer on teams often call for the players to “fight’ or even “kill ’em”. One’s teammates may urge super aggression. Coaches spend months in conditioning drills and two-a-days pre-season practices explaining how starters push the limits while bench setters are more timid. And what about the player’s parents? Who is responsible for engendering mayhem instead of mercy?

The same type of analysis is an element of our criminal justice system. When there is a lynching, how far back the causal chain should punishment go? Is it just the one person who slips the noose over the victim’s neck? What about the on-lookers, the news media that fanned the flames, the leaders who gave rousing speeches, the sworn law officers who did not intervene and the rest of the community who acquiesced in silence either during or after the lynching? Perhaps an entire country might be responsible or even a silently accepting world. How do we decide whether we are applying appropriate punishment or simply burning a few witches to shoulder the blame for everyone?

Then, of course, we need to look at the dynamics of the attenuation itself. Who is making the choices about whom to burn? Are the decisions just or are they just decisions because the ones who execute them have the power to do so? And most importantly, are we a better society because of the choices or are we simply fomenting more targeting? Finally, where and how does it end?

Briefly Speaking

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I.

The Salient Issue 

One method of grappling with what are the most vital issues America must resolve is to first eliminate those issues that blur our thought process. Five years of partisan ill will have sapped our nation’s psyche. Our health and our economy have suffered as we have found it more entertaining to castigate those who disagree with our political views than to make the hard choices required to battle COVID-19 and its devastation of our society. The events of January 06, 2021 and our reactions to them will either continue us on our downward spiral, or perhaps, America can remember and apply the healing lessons from our history.

Immanuel Kant (1724-1804) and Gerald Ford (1918-2006) would address the January 06, 2021 attack on our Capitol Building differently. Kant, the great German legal philosopher, would hold it immoral to not require retribution against President Trump for the death and destruction that occurred after Trump’s call for a march on Congress even though President Trump had only fourteen days left to serve when the riot took place. Kant’s position on the legal duty to punish is set forth in the following example. If we envision an island society that decided to dissolve itself completely and leave the island at a time prisoners sentenced to be executed were awaiting their fate, it would be immoral to leave the island without first carrying out the executions. Kant’s rationale for this seemingly needless act was that the blood guilt of the prisoners would attach to the general society if justice was not administered. An eye for an eye would be called for according to Kant.

In contrast, President Ford invoked the wisdom and healing of Jesus when Ford issued a pardon to disgraced ex-President Richard Nixon (1913-1994) for Nixon’s role in covering up the burglary of Democratic National Committee Headquarters. Ford issued the pardon in September only one month after Nixon resigned in August 1974 to avoid impeachment. Instead of retribution, Ford chose mercy, but not just for Nixon; America needed relief too.

Of course, neither revenge nor mercy can, by definition, be perfect justice. However, when it comes to crimes against the State there are larger issues than justice for individuals. The greater good may require a more involved response. Fortunately, we have the wisdom of our Founders and the courage of such leaders as President Ford to aid us in our decision-making process. 

II.

Separation of Powers

Our Founders built our Constitution on the general theory of three equal branches of government. The events since the election on November 03, 2020 give evidence of the abiding legacy left for us in 1789. After the election the Judicial Branch rendered numerous decisions that upheld the Rule of Law. Vice President Pence in the Executive Branch has refused to use the 25th Amendment for political purposes, and the Legislative Branch has resisted attempts to usurp the will of the electorate to de-certify the Electoral College results. Our governmental framework has been stretched but has accommodated pressures from many angles.

All three branches are working together to identify and prosecute those individuals who violated our seat of government with physical destruction and death. With the cooperation of numerous law enforcement agencies and the courts, along with the laws previously enacted by our federal and state legislatures, those who brought nooses, pipe bombs and twist-ties to their pre-meditated crimes are being identified; and if probable cause to commit crimes is shown, and guilt beyond a reasonable doubt is proven using due process of law, just punishment should result. Gentle Reader, next week, if you are available, we can consider the differing treatments of individuals and the issue surrounding the legal concepts of attenuation of culpability. As to President or ex-President Trump, I respectfully submit that continuing to have our country divided about half and half concerning Donald Trump is akin to President Lincoln’s prescient declaration that a house divided against itself will not stand.

With that in mind I submit for your consideration a Gavel Gamut article I wrote right after President Ford died in which it was suggested Ford sacrificed his political career for his country in 1974. I have slightly modified the original article:

III.

Pardon Me, President Ford

(First published 08 January 2007)

President Gerald Ford died December 26, 2006. In a life filled with public service, he will always be best known for his pardon of President Nixon in 1974. President Nixon had personally chosen Gerald Ford to replace the disgraced Vice President Spiro Agnew who resigned in 1973 amid disclosures of bribery while Agnew was Governor of Maryland. Vice President Ford served under President Nixon until Nixon resigned in August of 1974. One month after Nixon resigned, President Ford issued him a full pardon for any crimes Nixon may have committed while president.

At the time, many Americans, including me, were calling for a complete investigation of the Watergate debacle and especially Nixon’s involvement in it. It was a time of a media feeding frenzy and blood in the water. President Ford took the unprecedented step of going personally before Congress and flatly stating that President Nixon and then Vice President Ford had no deal to pardon Nixon if Nixon would resign.

I recall how dubious I was when President Ford stated that he issued the pardon only to help our country to start healing from the loss of confidence caused by Watergate. Yet, after a few months I began to have second thoughts about my initial reaction to the pardon. I realized how much courage it took for President Ford to go straight into the anti-Nixon firestorm sweeping the United States. As a country, we were almost paralyzed by the partisan fighting at home and the War in Vietnam. [Insert 4 years of partisan bickering during the Trump presidency and include at least 1 year of COVID-19.] We needed a new direction and a renewed spirit in 1974 just as we do today. Surely President Ford with his twenty-two (22) years in Congress knew he was committing political suicide by not giving us our pound of flesh. Still, he put his country first. Of course, the country rewarded his sacrifice by booting him from office and electing President Jimmy Carter to replace him.

But during the campaign of 1976, when President Ford came to Evansville, Indiana on April the 23rd, I took our son, Jim, out of school and we went to the Downtown Walkway to see the man who put country above self. For while William Shakespeare almost always got his character analysis right, when it comes to President Ford, “The good he did lives after him.” Julius Caesar, Act III, sc. ii.

Even President Carter, one of America’s most courageous and best former presidents said of his erstwhile political opponent President Ford: “President Ford was one of the most admirable public servants I have ever known.” And when it came to the pardon of President Nixon, Senator Ted Kennedy, while admitting that he had severely criticized the pardon in 1974, said that he had later come to realize that:

“The pardon was an extraordinary act of courage that historians recognize was

truly in the national interest.”

Taking Sides

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There was a time when the largest class of immigrants to the United States came from Great Britain. A large number of those erstwhile Englishmen and their descendants fought two wars with their one-time homeland. In spite of the British going so far as to burn down part of Washington D.C. during one of those wars, we still cleave to Great Britain as our closest ally. Neither we nor the British held grudges.

Then about one hundred years after the War of 1812 against our British cousins we joined with them in WWI against Germany. At the end of WWI, even though there were a great many citizens of the United States who traced their lineage to Germany, we signed on to the mean-spirited Treaty of Versailles in an effort to punish the Germans. Of course, as with many such badly intentioned actions, we also ended up punishing ourselves; WWII resulted. But thanks to such charitable American actions as the Marshall Plan, we made great allies out of modern Germany, Italy and some other WWII adversaries at the end of that conflict.

While Reconstruction and the aftermath of the American Civil War could have been handled much better, it also could have been much worse. Thanks to such attitudes as expressed by President Lincoln and others in both the Union and Confederacy, malice was held down and charity was exhibited. Even with hundreds of thousands of deaths and carnage throughout our country we managed to pull together and build what would become a living monument to ideals that had once been only dreams. America needs much more work to become that more perfect union but nowhere else have humans got so near the brass ring and a generous volksgeist has made that possible.

The spirit of openness, generosity and optimism that pervaded much of America after WWII might be helpful today. While such vital interests as equal rights and due process still require much work by all of us, a cooperative attitude and an impulse to be helpful might assuage our current social and political disagreements. What is less likely to be productive is the placement of unnecessary distance between United States citizens and their governments at all levels: federal; state; county; local and areas generally under government regulation such as transportation.

After 9/11 some governments and industries reacted out of fear and concern. Whereas citizens had normally seen their governments as there to serve them, with the restrictions of 9/11, governments appeared to fear those whom they were instituted to serve and who paid their wages. We began to develop a culture where many in and outside of government and the industries regulated by government felt we lived in an “us versus them” environment.

This might have caused just ennui and nostalgia had COVID-19 not arrived. But with the absolute necessity of all-out governmental and societal warfare against COVID-19, the distances between citizens and their governments have become almost complete. We must have some governmental services and we cannot expect people to perform those tasks if we do not provide for their protection. And we are still months away from a return to normality. But we may want to guard against a possible permanent condition of a bifurcated country with the citizens on one side and their governments generally inaccessible on the other.

With that in mind our current imbroglio involving our national government might be placed among these other lessons from our past. What is not called for is more distance between citizens and their elected and appointed representatives. Perhaps instead of a mean-spirited partisanship a mutual sense of charity tempered with common sense might be more in our country’s long-term best interest.