James M. Redwine

Democracy

Of Motes And Logs

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Last week the National Basketball Association deferred its 2020 playoff games out of respect for the Black Lives Matter movement. The incident that was the catalyst for the Milwaukee Bucks professional team to decide to boycott game five of the playoffs against the Orlando Magic team was the shooting of 20-year-old Jacob Blake, a Black man, on August 23, 2020 during an encounter with the police in Kenosha, Wisconsin. Blake informed the arresting officers he possessed a knife but he did not wield it. Blake’s shooting struck many as part of a continuum that began May 25, 2020 in Minneapolis, Minnesota when 46-year-old George Floyd, an unarmed Black man, died as a result of an encounter with police. In between Floyd and Blake several other incidents of police/Black person violence have made national news. History records numerous such incidents and a great many more have not been recorded but exist in the psyches of both minority and majority populations. Until cell phone cameras became ubiquitous such incidents tended to get lost in the vagaries of competing memories. Today the incidents are often still in dispute but there may be video and audio evidence to analyze in search of the facts as opposed to mere opinions.

In my experience the truth as believed to be proved by whatever evidence may exist tends to depend to a large extent upon the ability of the observers to set their personal prejudices aside and apply a degree of objectivity to the situation in question. Although such matters as the Blake and Floyd cases are qualitatively light years from sporting events, perhaps an analogy may still be apt when it comes to determining the actual facts as opposed to opinions about the perceived facts or, more likely, the projected ones.

When a sports fan endures the indignity of an umpire’s or referee’s close call against the fan’s team, it is the rare fan who congratulates the official for his/her judgment. What may look like interference to the referee may look more like “no harm, no foul” to the fan. Of course, when it comes to issues of race the emotions are much more complicated and visceral and deadly force or resistance may be involved. If in war the first casualty is truth, when it comes to matters of race and ethnicity truth often depends more on the culture of the observers than observation alone. That is why the wise people who founded this country fashioned a government of laws. Without law the scales of justice tend to dip in favor of whoever has the power to put their thumbs on the scales even when they would swear, and probably believe, they are fair to a fault.

About the best we can hope for, even in ourselves, is that we recognize our judgments on matters as fundamental as human rights are often influenced by our particular frailties and that our frailties come from our particular culture. Then we can bring up the logs that are in our own eyes and try to account for them in determining what the evidence truly proves in any particular case. People whose duty it is to make judgments on the behaviors of other people often learn, sometimes the hard way, that their conclusions about what certain evidence proves have been subconsciously affected by personal factors related more to the person doing the judging than the actual behavior of the ones they judge. This phenomenon has been recognized by trial lawyers and judges since we homo sapiens first began to settle our disputes in court instead of with clubs. That is one of the main reasons attorneys prefer to settle cases by compromise as opposed to seeking the full measure the attorneys believe their clients may be entitled to from a decision by a judge or jury after a trial. Over 95% of all court cases settle without a trial. The attorneys know that it is rare for a court decision to be intentionally biased but it is often subconsciously so. And if this is true with trained judges it is good to keep inherent biases in mind with such organizations as political parties and the media.

There are remedies to unjust treatment that has resulted from unrecognized prejudices. However, such things as money damages are usually insufficient compensation, especially if permanent disability or death to either an offender and/or officer occurs. Prevention is a better treatment. And prevention requires that we look deep within ourselves, hopefully well before, but at least at the time of a racially or culturally charged incident. Such introspection should be demanded of all whose job it is to control the behavior of others; police officers and judges come to mind.

But all of us would do well to recognize our potentional to unfairly discriminate based on factors we rarely acknowledge to ourselves. Of course, one of the best remedies for eliminating prejudicial behavior is an atmosphere where all points of view are allowed to be considered and evaluated. That is why Frederick Douglass (1818-1895) stated that the right of free speech is … “the dread of tyrants”. Perhaps Douglass recognized that tyranny can also come from within each of us and that the atmosphere of our current Cancel Culture that is festering hate on college campuses, in the news media, in politics and even among friends may be the place to start addressing systemic prejudices.

Independence Day

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Lexington Minuteman
Lexington Battle Green, MA

The Fourth of July is called Independence Day with good reason. Our Founders were willing to die for the right to control their own lives. They were not seeking war with the most powerful nation on Earth in 1776. They were not attempting to dictate to King George III how the English should behave. They sought only free will for America to determine its own course. In these troubled times we are now navigating, perhaps a look back to America’s early struggles might be helpful.

We may wish we could ask George Washington or James Madison for advice. But the best we can do is read about past heroes’ courage and sacrifice and try to learn lessons that will help us during our own battles.

For example, one of my heroines is Frances (Mad Fanny) Wright, that fighter for women’s rights, Black rights and freedom from religion who spoke in New Harmony, Indiana on July 04, 1828. Oh, how much we could learn if we could speak with her now. However, we do know she dedicated her life and fortune to eliminating slavery. Had she lived only nine more years she would have experienced the start of the Great Struggle that ended a whole race of Americans’ loss of control over their lives.

Control, isn’t that what matters most to all of us? The visceral need for the freedom to make our own choices is why on that day we now call Patriots Day, April 19, 1775, at Lexington and Concord those suppressed colonists “Fired the shots heard ’round the world”. And in our current political climate when Americans get embroiled in political discussions it sometimes feels as if both sides have muskets at the ready.

When I find myself surrounded by the competing political mini balls, I try to remember this is nothing new. Over the two or three hundred thousand years we Homo sapiens have been around, after air, water, food, shelter and procreation we seem to have two more basic needs: the control of our own lives; and the strong desire to control the thoughts and behavior of others. These two related but directly oppositional impulses apply to groups of people and nations as well. You know, we will each defend to the death the right of our political adversaries to agree with us. But conversations can rapidly turn to confrontation if someone comes down on what we believe is the wrong side of such issues as religion, race, global warming, immigration, war and peace, who should or should not be President of the United States and a thousand other subjects.

The right to control our own lives makes us smile. The desire to control other peoples’ lives can lead to such things as vitriolic statements and sometimes even vicious interchanges in our public and interpersonal interactions. Sometimes today’s discussions about control may center on sexual assault and the “Me Too Movement” or hate crimes and “Black Lives Matter”.

Rape is a terrible crime not because of forced sexual contact, billions of humans have had sexual relations. No, rape is a terrible crime because of the victims’ loss of their right to decide for themselves whether and with whom to have sex. The fear, terror, anger and humiliation caused by losing total control of one’s body is incalculable. It is in itself a life sentence that can lead to permanent bitterness toward and distrust of our legal system much as lynchings can result in an entire race of people living with constant concern about their freedom.

Lynchings, such as those that were committed on the Posey County, Indiana courthouse lawn on October 12, 1878, are a collective denial of another’s right to control their own destiny. And it is not just the victims who lose, but even those who deny justice to others may reap the whirlwinds of retaliation and political correctness.

Wars of aggression, not constitutionally authorized wars for national defense, are our country’s intentional denial of another country’s or people’s right to independently determine their own destiny. One of the main causes of our country’s post-WWII denials of the right of other countries to control their own lives are wars instigated by independent executive action without congressional authorization.

We can each quickly cite evidence of such wars based on false premises and rash executive action. President Lyndon Johnson used the shaky premise of the Tonkin Gulf Resolution to get us hopelessly embroiled in Vietnam. President George W. Bush relied on false intelligence reports that Iraq had weapons of mass destruction and was involved in 9/11. President Bush then precipitously led us into what appears to be an endless and pointless war in the Middle East.  As Pete Seeger’s song “Where Have All The Flowers Gone?” asks us, “When will we ever learn?, when will we ever learn?”

Our Founders’ wisdom of placing the authority to wage war in congress is that such a procedure keeps all of our citizens more closely involved in these grave decisions. And, it requires much more careful deliberation when congress is involved. Also, when we eliminated the military draft, we turned from a citizen minute man type military to a professional and less ecumenical type force. To make the tragic choice to go to war all Americans should feel the direct cost. It is too easy to hire others to impose our will on the powerless. With a professional standing military our armed forces never stand down. And the temptation for any of our presidents to play with these awesome powers as if they were toy soldiers is too intoxicating for most to resist. Of course, the draft is one of the ultimate impositions of loss of control. Our country should only use it when our national survival is truly at issue. And then it should include all able-bodied adult citizens. Not everyone needs to serve on the front lines but everyone can serve somehow.

One of the good things we received from one of our British cousins were John Locke’s Enlightenment philosophies as highlighted by the doctrine of separation of governmental powers. Our independence as a nation has survived great trauma due in large part to our three separate and equal political powers: Executive; Legislative; and, Judicial. We forget this at our peril. Control of our lives is an inherent need for individuals and nations and, if lost, can lead to long-term bad effects for both the invaders and the invaded. Freedom of choice is essential to our personal and national well-being. Our Founders enshrined that opportunity for us in our Constitution and that is what we celebrate on Independence Day as we struggle to afford that right to all of our citizens.

 

A Thousand Words

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I was born in Pawhuska, Osage County, Oklahoma where I spent my first 19 years (1943-1962). Osage County is adjacent to Tulsa and Tulsa County. The Tulsa race riots of 1921 were never mentioned during my 12 years of public education and one year at Oklahoma State University.

I served as a judge in Mt. Vernon, Posey County, Indiana from 1981-2018. Until March 14, 1990 the lynchings of African Americans that took place on the courthouse campus on October 12, 1878 were unknown to me and never brought to my attention.

Upon being made aware of the Posey County murders I began to search for more complete information. A friend of mine, Glenn Curtis, who was born and raised in Posey County advised me he had seen a photograph of the 4 young Black men hanging from locust trees outside the courthouse door. He told me he remembered the elongated necks, swollen tongues and cue ball sized eyes of the hanging bodies. I have searched for a copy of that photograph since 1990.

October 12, 1878 Mt. Vernon, Indiana Courthouse Campus

My friend, Doug McFadden, who was also born and raised in rural Posey County told me that his grandfather told Doug that the day after the lynchings Doug’s grandfather watched as white citizens used the hanging young Black men for target practice. And while there was no photograph taken of the young Black man Daniel Harrison, Jr. who on October 10, 1878 was burned to death in the fire box of a locomotive in Mt. Vernon, another Posey County native friend of mine, Basil Stratton, told me that his grandfather, Walker Bennet, was an eyewitness. Walker told Basil that as a young boy he was present and saw several white men, including Walker’s father, force Harrison into the steam engine. Basil’s grandfather told Basil he never forgot the Black man’s screams and the smell of his burning flesh.

I have long thought that a photograph of the lynchings might be the evidence needed to finally get a memorial to the victims erected on the Posey County Courthouse campus. And yesterday my friends, Liz and Jeff Miller of Posey County, emailed me a copy of just such a photograph. Jeff and Liz received the copy from our mutual friend and historian, Ray Kessler of Mt. Vernon. Ray told me when we spoke by phone last night that he got the photograph from Karen McBride Christensen of Indianapolis who retrieved the picture from Georgia’s Emory University archives. I do not, as yet, know how it came to be there. Because of its graphic nature I have not attached it to this newspaper article. However, it did call me to reprise an article on race relations I first published July 4, 2005. Gentle Reader, as recent events may lead one to conclude the issues discussed in that article remain raw in our national psyche today, I offer it once more for your consideration.

 

 

HAPPY BIRTHDAY TO U.S.!

LET’S HAVE A PARTY AND INVITE EVERYONE!

(Week of July 4, 2005)

The United States Supreme Court has occasionally succumbed to popular opinion then later attempted to atone for it.  The Dred Scott (1857) and Plessy v. Ferguson (1892) cases come to mind as examples of institutionalized injustice with the partial remedy of Brown v. Board of Education (1954) being administered many years later.

In Dred Scott, the U.S. Supreme Court decided that American Negroes had no rights which the law was bound to protect as they were non-persons under the U.S. Constitution.

And in Plessy, the Court held that Mr. Plessy could not legally ride in a “whites only” railroad car.  The Court declared that laws that merely create distinctions but not unequal treatment based on race were constitutional.  SEPARATE BUT EQUAL was born.

Our original U.S. Constitution of 1787 disenfranchised women, and recognized only three-fifths of every Black and Native American person, and even that was only for census purposes.  Our Indiana Constitution of 1852 discouraged Negro migration to our state in spite of Posey County Constitutional Convention Delegate, Robert Dale Owen’s, eloquent pleas for fair treatment for all.

Were these documents penned by evil men?  I think not.  They were the result of that omnipotent god of politics, compromise, which is often good, but sometimes is not.  Should you have read this column recently you may recall that I strongly encourage compromise in court, in appropriate cases.

However, as one who grew up in a state where the compromise of the post Civil War judges and politicians led to the legal segregation of schools, restaurants, and public transportation, I can attest that some compromises simply foist the sins of the deal makers onto future generations.

When I was 6 years old, my 7 year old brother, Philip, and I made our first bus trip to our father’s family in southern Oklahoma.

We lived on the Osage Indian Nation in northeastern Oklahoma.  It sounds exotic but our hometown, Pawhuska, looked a lot like any town in Posey County.

In 1950 our parents did not have to worry about sending their children off with strangers except to admonish us not to bother anyone and to always mind our elders.

When mom and dad took us to the MKT&O (Missouri, Kansas, Texas and Oklahoma) bus station it was hot that July day.  Oklahoma in July is like southern Indiana in July, WITHOUT THE SHADE TREES!

My brother and I were thirsty so we raced to the two porcelain water fountains in the shot gun building that was about 40 feet from north to south and 10 feet from east to west.

Phil slid hard on the linoleum floor and beat me to the nearest fountain.  And while I didn’t like losing the contest, since the other fountain was right next to the first one, I stepped to it.

“Jimmy, wait ‘til your brother is finished.  James Marion! I said wait!”  Dad, of course, said nothing. He didn’t need to; we knew that whatever mom said was the law.

 “Mom, I’m thirsty.  Why can’t I get a drink from this one?”

 “Son, look at that sign.  It says ‘colored’.  Philip, quit just hanging on that fountain; let your brother up there.”

Of course, the next thing I wanted to do was use the restroom so I turned towards the four that were crammed into the space for one:  “White Men”, “White Ladies”, “Colored Men”, and “Colored Women”.

After mom inspected us and slicked down my cowlick again, we got on the bus and I “took off a kiting” to the very back.

I beat Phil, but there was a man already sitting on the only bench seat.  I really wanted to lie down on that seat but the man told me I had to go back up front.  And as he was an adult, I followed his instructions.

Philip said, “You can’t sit back there.  That’s for coloreds.  That’s why that colored man said for you to go up front.”

That was the first time I noticed the man was different.  That was, also, the point where the sadness in his eyes and restrained anger in his voice crept into my awareness.

As a friend of mine sometimes says, “No big difference, no big difference, big difference.”

And if all this seems as though it comes from a country far far away and long long ago, Posey County segregated its Black and White school children for almost 100 years after 600,000 men died in the Civil War.  In fact, some of Mt. Vernon’s schools were not fully integrated until after Brown was decided in 1954.

And, whether we have learned from our history or are simply repeating it may depend upon whom we ask.  Our Arab American, Muslim, Black, Native American, and Hispanic citizens, as well as several other “usual suspects”, may think the past is merely prologue.

Sometimes it helps for me to remember what this 4th of July thing is really about.  It’s our country’s birthday party; maybe we should invite everyone.

There is nothing equal about separate.

Choices And Consequences

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

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

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

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

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

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

The Right To Matter

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From www.270towin.com

It was not the British Parliament’s tax on tea that caused the Boston Tea Party on December 16, 1773; it was the denial of the Colonists’ right to be represented in Parliament.

It is not the sexual part of unwanted sex that matters to the Me Too Movement, we Homo sapiens have spent the last 200 to 300 thousand years engaging in sex; it is the “unwanted” factor that is objectionable.

And when our Founders were barely able to cobble together our Republic it was not the fact that some of the Thirteen Colonies had much greater populations than others or much greater wealth than others that almost caused the United States to be simply thirteen entirely separate entities; it was the fear by both the more populous and less populous colonies that their voices would not sufficiently matter.

There were many reasons why and how our constitutional democracy survived colliding circumstances, desires and egos but two of the most significant compromises were the Proportional Representative construct and the Electoral College.

Large states accepted the compromise that in the Senate each state would have two and only two Senators because their proportional influence was recognized by having the number of Congressional Representatives determined by population. Smaller states accepted this arrangement in like manner because they would have an equal voice in at least one of the two Congressional bodies, the Senate, even though they would have fewer Congresspersons than larger states.

Then there is the imaginative system of the Electoral College. The Electoral College determines who will be the Executive Branch leaders, the President and Vice President, via a method similar to the proportional representative system. And because the President has the authority to nominate all federal judges, whoever has influence over the election of the President has an indirect voice in the makeup of the third branch of our federal government, the Judicial Branch. Therefore, the Electoral College, whose only job is to meet every four years and vote for the Chief Executive and the Vice President, has some influence over two of the three Branches of our government. Of course, the Executive Branch contains the armed forces, the F.B.I., the D.E.A., etc., etc., etc. And these countless agencies assert immense power over all of us. We certainly want our opinions to matter when it comes to all those aspects of our government.

The number of Electors of the Electoral College is determined by totaling the number of Congressional Representatives each state has and each state’s two senators. The number of Congressional Representatives is derived from each state’s population. So, very similar to the general system of representative/proportional government, where all states have two and only two senators but have differing numbers of Congresspersons based on population, the Electoral College is based on every state having some Electors but more populous states having more Electors than less populous states.

Currently there are 538 members of the Electoral College based on 100 Senators and 438 Congressional Representatives. For example, Indiana has 2 Senators and 9 Congresspersons for a total of 11 Electors and Oklahoma has 2 Senators and 5 Congresspersons for a total of 7 Electors. On the other hand, California has 2 Senators and 53 Congresspersons for a total of 55 Electors. Indiana’s sister state of Illinois has 20 Electors, almost twice as many as Indiana, and Oklahoma’s sister state of Texas has 38, over five times as many as Oklahoma. The District of Columbia has no Senators but does have 3 Electors based on the 23rd Amendment to the Constitution. Three is the least number of Electors of any state. The U.S. Territories do not receive any Electors.

Whichever candidate receives 270 Electoral votes, the current majority of Electors, is elected President. Sometimes the candidate who receives the most popular votes does not receive a majority of the Electoral votes. This always reignites a debate to eliminate the Electoral College and go to a pure one person/one vote system. Such was the case in 2016 when the Democrat nominee Hillary Clinton received 3,000,000 more popular votes than the Republican nominee Donald Trump, but Trump received 304 Electoral votes, which was 77 more than Clinton received. Had this outcome been inverted I suggest the pro/anti-Electoral College debate would have also been inverted.

There certainly are legitimate arguments for modifying or even eliminating the Electoral College system even though the College has helped to assuage the constant yin and yang of large states versus small ones. As for me, having spent most of my life, so far, in either Oklahoma or Indiana, I do not wish to rely upon the tender mercies of the few lumbering giant states with huge populations of voters that might deign to turn a deaf ear to my concerns and those of the other residents of the numerous less populous states.

High Crimes And Misdemeanors

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Old Cadet Chapel, West Point

If you visit our country’s most hallowed military institution at West Point you will find America’s most infamous traitor, Benedict Arnold, is as reviled today as he was in 1780. Arnold had been one of General George Washington’s closest colleagues and was in command of Fort West Point when he plotted with British Major John André to surrender West Point to the British.

André was caught and hanged but Arnold escaped to England where he joined the British Army as a general and then engaged in battles against America. Such treachery is not easily forgiven. When you enter the venerable old Cadet Chapel at West Point you will find there is no mention of Arnold; his name has been removed from where others are displayed with honor.

Interior of Old Cadel Chapel

If even now America has not forgotten what treason truly is you can imagine how the Framers of our Constitution felt when they wrote our Constitution only seven years after Arnold’s betrayal. When Article II, section 4 of the Constitution was drafted treason was the first reason given for impeachment:

“The President, Vice-President, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery or other high crimes and misdemeanors.”

Article I, section 5 gives the House of Representatives the sole power of impeachment and Article I, section 3, subsection 6 gives the Senate the power to try the charge of impeachment with a conviction, and subsequent removal from office, requiring a two-thirds vote.

We have had forty-five Presidents of which three have been impeached: Andrew Johnson (1865-1869); Richard Nixon (1969-1974); William Clinton (1993-2001); and now perhaps, Donald Trump (2017-?). Andrew Johnson and William Clinton were not convicted. Richard Nixon resigned. And Donald Trump’s situation is yet to be determined.

I do not know the significance of why America went from George Washington (1789-1797) to 1973 with only one presidential impeachment then has had two, and perhaps three, since then. My speculation is the bar for impeachment has been lowered from the behavior of a Benedict Arnold to a standard based on personality. Have we transitioned from treason to Tricky Dicky, Slick Willy, and, perhaps, Dodgy Donnie? If so, the cautionary statements of then Representative Gerald Ford and the Founding Father and main architect of the Constitution James Madison may be worth considering. “An impeachable offense is whatever a majority of the Members of the House of Representatives says it is” (Ford); and we should be aware “Maladministration” [or its kin] is, “so vague a term [as] will be equivalent to a tenure during pleasure of the Senate.” (Madison).

A short-hand interpretation of these admonitions is that America should not allow itself to become a nation based on the fluctuating opinions of those in Congress but only upon a system of law as sought by those who crafted our Constitution.