James M. Redwine

Democracy

Not Rocket Science

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The Rule of Law is not the stuff of artificial intelligence and differential equations. It is not about the James Webb telescope that may help disclose where and when we came from. It is not about a cure for COVID. No, the Rule of Law is far more complex, and perplexing, than any of those things. However, if properly applied, the Rule of Law can help us understand and deal with these challenges and others.

Law sounds simple. Treat others the way you wish to be treated. Respect the person and property of others. These principles are easy to say but thousands of years of human history prove they are extremely difficult to apply. Our Declaration of Independence sets out the basics of our legal system, “…[A]ll men are created equal,” and all men have the right to life, liberty and the pursuit of happiness. When Thomas Jefferson penned those simple ideals he owned slaves, and had children he did not acknowledge by at least one of those slaves. Also, women could not vote and the property rights of Native Americans were not even an afterthought. Were Jefferson and the rest of the 1776ers evil? No, they were human. We call these concepts ideals because the realities are nearly impossible to achieve. That is why we need the Rule of Law, to encourage us to try.

Our Constitution sets forth America’s aspiration to form a more perfect union. Surely none of our Founders was naïve enough to believe perfect self-government was achievable. That is not why goals are set. Just as it is the struggle of life that can separate us from all other animals and, perhaps from some humans, it is government’s role to help us strive for perfection. We have often fallen short and we always will. But just as we are fighting the war on COVID in fits and starts we can face our past failures in how we have behaved and strive to be better. There will never be a cure for our occasional imperfect collective missteps. That is why we need to acknowledge our past failures and seek to avoid future sins. We should do this together.

In her book, On the Courthouse Lawn, Sherrilyn Ifill points out the irony of many lynchings being carried out by large numbers of a community right at the seat of justice, the county courthouse. Also, our courthouses are often the site where the legal system has been used to deny human rights, such as through the separation of Native American families and establishment of some guardianships that led to murder.

Community recognition of these subversions of the Rule of Law is important. Monuments that show society admits its wrongs, even if long past, can help people heal and avoid new injustices.

Raise a Parting Glass

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Old Baptist Cemetery, Wilburton, Oklahoma

The old Irish folk ballad, “The Parting Glass”, is a favorite Irish drinking song and is almost always sung, often a cappella, to help the dearly departed on their way. Military veterans are also frequently toasted to honor their service as glasses are raised and the ballad is sung. As you will see that tradition was carried from Ireland to America.

It is Veteran’s Day and as a veteran I have been thinking of all the service members, those who have served before and with me and those who are serving now. The United States Air Force was very good to me even though I gave little more than some of my time during a time my time was not otherwise of much value. While in the Air Force I was sent to Indiana University for one year to study a foreign language. Once honorably discharged I received four years of the G.I. Bill. I still receive VA health benefits. If a balance sheet were kept, I would be much more benefitted than contributing. Fortunately, no such accounting is made. So, thank you America.

And it is not just myself in my family who have been blessed to serve. Both of my brothers and my brother-in-law received honorable discharges and veteran’s benefits from the Army. Our father wanted to serve in World War II but a massive heart attack and his age caused Uncle Sam to say “no thanks.” In my immediate family our son, Jim, got his college education at West Point and now receives disability benefits due to physical health problems caused by his active-duty combat service on the front lines of both the Gulf War and the Iraq War. His son, Nick, our grandson, just graduated from Army Ranger School as Jim did about thirty years ago. Nick also got his college education via an R.O.T.C. scholarship thanks to the Army.

During WWII my mother’s three brothers and one of her sisters served as did my wife’s grandfather and two uncles. Each of these honorably serving family members received post-war benefits from a grateful nation. So, once again, thank you America.

Now going back another generation to my grandfather, Adolphus Cash Redwine, who was born in Georgia in 1848 before he moved to southeastern Oklahoma. With grandpa we find a murkier but perhaps more interesting veteran even if I am not sure which color uniform the Civil War era teenaged soldier wore. All I do know is that a few years ago my first cousin, Paul Redwine, who was the eldest son of one of my father’s numerous brothers living in the Wilburton, Oklahoma area told my sister, Janie, another of our uncles, Henry, received a letter of inquiry from the Veteran’s Administration in regard to our grandfather.

The letter stated grandfather’s military records indicated he was entitled to a military grave marker. Please remember this was at a time all service, Confederate or Yankee, was honored. The VA wanted someone to guide them to grandfather’s burial site. Paul said our Uncle Henry volunteered and the federal man showed up in Wilburton, Oklahoma with a bronze marker for grandpa’s grave.

Uncle Henry was one of the few people who knew the place where granddad was buried as grandfather was a Baptist minister who was preaching from the bed of a buckboard at a camp meeting in the remote hills of southeastern Oklahoma when something spooked the team of mules hitched to the buckboard. The mules took off and grandfather was thrown to the ground and killed. The congregation, at my grandmother’s request, buried grandpa right there with a board to mark the spot. That area grew into the tiny Bug Scuffle Cemetery outside Wilburton. Uncle Henry knew generally where the Bug Scuffle Cemetery was located among the sparsely populated hills. Unfortunately, Uncle Henry also happened to be a local source of moonshine. Uncle Henry made the gentlemanly suggestion that before he and the federal man placed the marker on grandfather’s grave, they should raise a toast in his honor using some of the family’s pride. The federal man, probably not wishing to offend, readily agreed.

My guess is grandfather’s military service, whatever it was, was still honorable even if his marker is not on his grave. For, as you see, Uncle Henry and the federal man raised so many parting Ball fruit jars to granddad’s service they never found his gravesite and lost the marker during their search. However, to grandfather and all veterans I am raising a metaphorical parting glass to say thank you and well done, and thank you to America for allowing us to serve.

Tribal Court

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Chief Joseph

After forty years of serving as a judge in the white man’s courts I was recently honored to be asked to serve as a Special Judge by appointment of the Court of Appeals of the Stockbridge-Munsee Community of the Mohican Nation. The appointment of an outside judge was necessary because the case involves questions of tribal membership and the regularly sitting Native American judges for the Tribe had conflicts of interest due to the judges’ personal connections to the issues.

As I had no experience with Native American law, I had to first familiarize myself with the particular Tribe’s particular Constitution, procedural rules and statutes that applied to my assigned case. What I found was the bedrock issues for the Indian judicial system are remarkedly similar to the legal system I learned in law school and sat as a judge in. When I looked closely at tribal law, I came to the same conclusion attorney Abraham Lincoln did. Lincoln said the primary purpose of all courts and lawyers should be to:

“Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker, the lawyer (judge) has a superior opportunity of being a good person.”

If one reads some newspaper editors or listens to cable news anchors, he or she might conclude compromise is anathema to the American body politic’s well-being. Conflict and strife with unyielding single mindedness are the watchwords for national media and federal, and many state, office holders. This way of addressing our personal and national problems seems rather discordant when a majority of Americans apparently believe their preferred law giver said:

“Blessed are the peacemakers, for they will be called the children of God.”
Matthew 5:9

It is ironic that those, many of whom champion Jesus the ultimate practitioner of compromise, so often call for obstinance and conflict. I guess the concept of situational ethics passes them by.

What I discovered in researching tribal law was what legal scholars have known since the days of Socrates: all courts are here to resolve controversies. That is their only charter, not to provide fodder for the gossip mill or entertainment for the afternoon or late-night talk show crowd. Judges, whether in the white man’s legal system or the Indian’s, have one main mission, that is to help people help themselves, if they can, to make peace.

I grew up on an Indian reservation but my experience with the kids I played ball with, fought with and dated was they were just like me. Therefore, I was not surprised Native American courts had the same mission as the one I presided over in the white man’s world. On the other hand, it is comforting to think should I for some reason get caught up in a tribal legal system it will be about the same as the social system I have always known. And I am glad America is finally getting around to recognizing what should have always been the case.

The tribal law I researched reminded me of laws enacted from the times of ancient Rome, ancient Greece and English and French legal philosophers, such as John Locke and Voltaire and American Founding Fathers, such as Thomas Jefferson and James Madison.

Another great philosophical legal leader was Chief Joseph of the Nez Perce (1840-1904). Chief Joseph engaged in peaceful resistance until he was forced to surrender which he did based on certain representations from the white man’s government. Those representations were not honored. However, Chief Joseph upheld his end of the peace agreement and he was greatly admired as a peacemaker.

Chief Joseph’s legal philosophy is remarkedly similar to that of our earlier mentioned judge: Jesus said, “do unto others as you would have them do unto you.”  Chief Joseph said:

“If the white man wants to live in peace with the Indian, he can live in peace. Treat all men alike. Give them the same law.”

As a tribal judge, even if only for one case, I feel quite at home with this court mission statement from Chief Joseph.

Do Not Cross the Potomac River

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At the Rubicon

In 49 BC the Senate in the Republic of Rome ordered Gaius Julius Caesar to not bring his army across the Rubicon River into the city of Rome. Caesar said, “Let the die be cast”; that is, I’ll take my chances. He did, Rome as a Republic collapsed into civil war and instead of a representative government the Roman people got a dictator. Five years later, on the Ides of March, Caesar was deposed by force.

The people who founded the United States of America came from a tradition of great fear of military power over civilians. In fact, in our Declaration of Independence one of the main complaints against King George III was that, “He has affected to render the military independent of and superior to the civil power.”

This great fear of military control over the civilian populace of America was guarded against in our Constitution. Article I, section 8 endows Congress with the power and authority to declare war, and to raise armies and militias to suppress insurrections. Article II, section 2 establishes that the democratically elected President shall be in control of the armed forces as the Commander-in-Chief.

In his exhaustive and exhausting treatise, The Framer’s Coup, The Making of the United States Constitution, Professor Michael J. Klarman points out the vital importance to our Founders that “[I]n all cases, the military should be under strict subordination to, and governed by, the civil power.” See p. 330.

We Americans profess pride in and support of our military as long as we are assured our military remembers its place. That system has worked pretty well and we are likely to maintain it in spite of political pressure being brought upon the generals to undermine their Commander-in-Chief. As I recall from my service days, I did not always recognize as wise what my military superiors thought was wisdom. Joseph Heller in his prescient novel, Catch-22, had a pretty firm grip on the banality of much of the military. On the hand, our politicians sometimes also fall a little short of a full deck. Still, at least we have the opportunity to have some say in who our civilian leaders will be and we can fire them.

Therefore, for me, I’ll chose to bob and weave with the occasional civilian loser versus a palace military coup. Back off oh ’ye purveyors of a Banana Republic. As Scarlett O’Hara said, “Tomorrow’s another day” and as Annie said, “Tomorrow is only a day away.” I can wait. Elections, yes, coups, no.

Another look at the Rubicon

Sour Grapes

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Painting by Shirley (Smith) Redwine

Aesop (620–564 BC.) was a slave in ancient Greece who told morality tales. Aesop’s fables generally used irony and experiences from everyday life to illustrate their lessons. Negro spirituals provided the same type of psychological relief for slaves in America. Each Fourth of July as we celebrate our country’s freedom from Great Britain in 1776 we honor the principles of democracy handed down to us by those brilliant and courageous ancient Greeks. But the Greeks from c. 2500 years ago and our Founders from 245 years ago were seeking a perfect society, not establishing one.

Athena was claimed to have sprung full-grown from the mind of Zeus and the United States is often claimed to have been born free and equal when we adopted our constitution. However, the goddess of justice and justice in America were ideals not reality. We know there is more work to do and we are doing it. Independence Day celebrations are a good time to reflect on the hard work remaining.

Each Fourth of July our family, probably much as your family Gentle Reader, get together to renew and reminisce. This year we are gathering at the Constantine Theater in Pawhuska, Oklahoma on July 16 and 17 during the wonderful Cavalcade Rodeo event. Shirley (Smith) Redwine has graced our family for well over half a century after she competed as a queen contestant and barrel racer in the Cavalcade. You can see her in the painting she created. You go Cowgirl!

Shirley’s husband and our eldest sibling, C.E. Redwine, is a wonderful professional musician and is coordinating a family jam session at the Constantine. We will have saxophone, ukulele and guitar players of various persuasions as well as singers and talkers. We will not pay you to attend nor will you have to pay to come visit with Pawhuska High School graduates from 1954, 1955, 1960 and 1961 on July 17th from 2-4 p.m.

This same group got together at the Constantine in 2011 when we showed the movie we made of my historical novel JUDGE LYNCH!. That horrific tale of injustice and its brand-new sequel Unanimous for Murder involve the legacy of slavery, segregation and integration in Posey County, Indiana and Osage County, Oklahoma. Those sad stories also involve an Aesop-type irony from 2011. It reminds me of the bittersweet years when we had Colored Folks and White People.

 

When Peg and I wrote JUDGE LYNCH! I borrowed, with his prior permission, the name of one of my childhood friends. Travis Finley is a sports legend, minister and former Pawhuska City Councilman. I used his name for a character in JUDGE LYNCH! When we returned to Pawhuska from New Harmony, Indiana in 2011 to show the movie we made we invited Travis and his wife Edna to attend the premier. As I was up on the stage of the Constantine explaining the book and movie, I looked out in the audience to find Travis and Edna; they were not visible. After my introduction I searched the downstairs of the theater then went to the balcony. There, just the two of them, sat Edna and Travis. I went up to them and said, “What are you doing up here?” They reminded me of what America has been and what it was meant to be when they answered, “When we were kids we weren’t allowed to sit downstairs so now we don’t want to. Besides, you can see better from up here.”

Happy birthday, America. Let’s keep perfecting!

Distancing

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President Lincoln reportedly used to occasionally sit on the back steps of the White House and talk to old friends who might just drop by. President Truman used to play poker at his Key West, Florida White House with ordinary folks. President Jackson invited the hoi polloi to his inauguration and they came and trashed the White House. There was a time America’s leaders thought of Americans as equals, or at least not as persona non grata. Now there are fences and armed guards at the White House and the only time a president makes personal contact with Americans is to have a photo op. Democracy is now pretty much non-democratic.

Our politicians often ascribe the responsibility for this metamorphosis to need for security, that is, fear of contact with us. I suggest it has more to do with their desire to just pick up their tax payor funded paychecks while being left alone. Kind of like getting COVID-19 checks not to work. Anyway, my experience in working for the public has been that it has not been a concern for my security or anyone else’s that has brought about such distance between public servants and the public. But it comes more from a realization that there simply is very little difference between those who control the government and those who are controlled by it, and the controllers are afraid that will be found out. At least that is true with the judicial branch and the legal system. I invite you, Gentle Reader, to return with me to at least one incident from those “thrilling days of yesteryear” to help me illustrate my concerns about the loss of direct connection to our office holders.

When the State of Indiana used justices of the peace to process most minor legal matters such as driving offenses and small civil claims, the “courts” were often held in the homes or store fronts owned by the justices. One would appear before some non-formally trained person who would dispense justice in a relaxed atmosphere and at little cost. Then we “improved” the system by requiring legally educated and licensed judges and publicly financed court facilities. Everything became more complex, costlier and more distant.

In Posey County, Indiana the County Court that replaced the Justice of the Peace system in 1975 was jammed into a portion of the 1927 Memorial Coliseum Building. The original coliseum was built as a community center. It had a swimming pool, a gymnasium, a stage for shows and a pool table. The new County Court, including the judge’s chamber, took up three small rooms next to where the pool table was. And another feature was the closet in the approximately 20-foot by 30-foot courtroom where the Daughters of the American Revolution ladies kept their regalia to be used in their meetings that also were held in the courtroom.

When I was the Chief Deputy Prosecuting Attorney for Posey County, 1976-1978, I tried six-person jury trials in that courtroom. As we had no separate jury room we would try a case then leave the jury in the courtroom alone to deliberate on their verdict. Everyone in the courtroom could reach out and almost touch everyone else. Of course, there was little pretense of confidentiality. I know it sounds bizarre but it worked okay and no one, including the judge and the attorneys, could arrogate themselves into special status. Please let me tell you about one of my favorite cases from that halcyon time.

I was a little younger then and one of the cases I prosecuted involved a misdemeanor charge against a Billy ______ who was about my age. Billy represented himself in the jury trial. After Billy and I traded accusations and insults during final arguments the judge gave the case to the jury then ordered the courtroom cleared except for the jury. Billy and I stepped out to the adjoining room where both a soft-drink machine and the pool table were located.

As we attempted to ignore one another, Billy turned to me and said, “Hey, Jim, do you play pool?” As I grew up in Pawhuska, Oklahoma at a time when the only thing other than the ball field was the pool hall, of course I played pool.

“Yeah, Billy, I play pool and I can beat you at that too. By the way, I thought you did okay in court, but be prepared for the gavel to fall.” I was much more sure of myself then.

“Jim, do you want to put anything on the pool game?”

“No, Billy, that would be illegal; go ahead and break.” I did not mention that a portion of my tuition at Oklahoma State University came from non-legal lucre.

Well, we played as the jury was busy deciding they didn’t care if I thought Billy was a menace to society; they sided with Billy. Since that trial Billy and I have had several contacts of the legal variety and you may note Billy is still playing pool but now my pool table is in my barn.

In my opinion, America could use a reprise of some of that by-gone legal system where the people who are processed and those who do the processing are not separated by layers of convolution. As Eva Peron might say, ♫ I’ll keep my promise, don’t keep your distance.” ♫