James M. Redwine

Rule of Law

It Is Time

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Sunday, June 18, 2023 Fareed Zakaria on his CNN show, The Global Public Square, introduced a segment about the United States Supreme Court by stating, “The Supreme Court is supposed to be the ultimate, safeguard of our democracy, but has the Supreme Court itself become a danger to our democracy? Is the Court today acting as a defender of democracy or a threat to it?”

Fareed’s guest was Michael Waldman of the Brennan Center for Justice at New York University. Waldman’s book, How the Supreme Court Divided Our Country, sets forth a central thesis: nine unelected, life-tenured people on the Supreme Court hold too much power for too long and they have become “very, very activist and extreme in their rulings”. Waldman’s position, and mine, is that the U.S. Constitution was designed to adapt to changes in our society and it is critical that the Supreme Court change also.

Zakaria and Waldman advance the idea that the justices’ terms should be limited, Waldman suggested a one-term term of eighteen years. I have long called for term limits for all federal judges plus revamping their selection process to popular elections, not appointments that involve only the president and the senate. I think eighteen years is too long. I suggest if our elected president can only serve eight years that a ten- or twelve-year term for judges is reasonable.

In order to encourage people to run for federal judgeships it seems to me it is in the country’s best interests that once a judge has served her or his term the retired judge continue to receive all pay and benefits during their lifetime as long as they do not seek another judicial position.

Judicial offices could appear on the normal ballot as a non-partisan position as needed. There should be minimum qualifications required, such as graduation from an accredited law school, passage of a national Bar Examination, an age of at least 35, the same as the president, and a clear record as to ethical matters. As in all contested elections the relative merits of the judicial candidates could be brought out by the candidates themselves, their supporters, their opponents and the media.

Surely when our Supreme Court is being accused of “holding too much power for too long” and of being “a threat to our democracy”, it is essential we make some fundamental, Constitutional adjustments. America may not yet be on the brink of disintegrating into legal and political chaos, but when that possibility is bantered about blithely on Sunday news programs, it is time to act.

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.

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

Do Right While We Help Ourselves

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If you read last week’s column (hey, I can dream can’t I), you know I am preparing to help the National Judicial College teach Rural Court Judges. Last week we talked about the theory that our law arises from our history and culture, our Volksgeist. Or as Oliver Wendell Holmes, Jr. (1841-1935) put it, “The life of the law has not been logic; it has been experience”.

Posey County, Indiana has produced several influential thinkers on what our law should be and do, that is, what is the proper purpose of our legal system? Our most famous citizen was and still is Alvin P. Hovey (1821–1891). Hovey was an attorney, a Posey Circuit Court judge, a general and the only governor to ever come from Posey County (1889–1891). He also sat on the Indiana Supreme Court when it decided a poor person was entitled to the same protection of our laws as a rich person.

Another of our famous predecessors was the brilliant and courageous Frances (Mad Fanny) Wright (1795–1852) who gave her entire adult life to an effort to free slaves and secure equal rights for women. Unfortunately, her good deeds were often overshadowed by her lifestyle. Still she fought for those who could not fight for themselves.

Frances Wright’s companion and fellow traveler was former Congressman Robert Dale Owen (1801–1877). Owen knew Abraham Lincoln from having served in Congress in 1843–1847 while Lincoln served in Congress 1847–1849. Owen’s 1863 letter to Lincoln urging him to free the slaves is credited with influencing the President to issue the Emancipation Proclamation.

Robert Owen and Alvin Hovey were also Posey County’s delegates to the Indiana Constitutional Convention of 1850–1852 that produced our 1852 Constitution in which our legal system demands fair and equal treatment regardless of a person’s ability to pay. The Preamble sets forth the first principle of our government is to establish justice and, as set forth in Article I, “That all people are created equal”.

Article I, Section 12, guarantees equal justice to rich and poor alike: 

“All courts shall be open and every person for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.” 

While there are many reasons we need justice from our legal system, I suggest the two most important areas concern whether our government wants to lock us up or take away our children. Of course, there are many wealthy people who are charged with crimes and even some wealthy people who the rest of us believe should lose their children to state care. However, it is simply a fact that most people who go to jail are poor as are most parents whose children are removed by the courts.

It is usually the poor and powerless who are caught up in the terrifying, confusing and expensive legal system. And frequently these poor people are not highly educated nor do they have friends in high places. They need help and both Indiana and federal law guarantee that help to them, including representation by an attorney. If the rest of us want to lock someone up or take away their children, the least we can do is follow the law ourselves and provide these people with legal assistance as our Constitutions demand. This is not only required by law, fair, just and reasonable, it is good for all of us. If the innocent are not locked up or the guilty are fairly sentenced or children are not removed when unnecessary or when necessary are removed carefully and with efforts to help the children and the parents, such justice is in our own self interest. In other words, not only is it right, it is smart and in the long run saves us money as it helps people recover so they may contribute to society. And it helps families remain united or reunite.

If we can spend trillions on matters beyond our borders, we should not be mean-spirited and self-destructive with our own citizens. Plus, it complies with the law, especially those state and federal Constitutions some of us are fond of saying we revere.

Reasoning Together

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Mediation has been required in the courts of Posey County for over twenty years. The Bar Association members are critical in the successful resolution of matters by the encouragement of fair and equal bargaining between opposing parties in court cases.

Last Monday’s Law Day (April 10, 2017) verdict decided the competing interests of North Posey High School students and Mt. Vernon High School students. In the Mock Trial presided over by Judge Brent Almon and decided by a jury composed of Posey County attorneys, the wisdom of reasoning together in good faith was reaffirmed. The real-life attorneys ruled that both teams of student attorneys won.

The issue to be determined was which party or parties, i.e., which high school, would have the legal right to auction off the naming of the newly discovered planets of the star Trappist-1. The jury wisely decided that each school could name half of them.

As a spectator I was impressed with the hard work, intelligence and imagination of the students from both schools. The excellent supervision and guidance of their teachers, Michele Parrish, Mike Kuhn, Lucy Steinhart and Tim Alcorn, was evident.

This year’s Mock Trial was the thirty-fifth straight year Posey County’s high schools have participated in celebrating Law Day with the Posey County Bar Association. About two thousand students and many regularly practicing attorneys have joined in this important commemoration.

Perhaps next year at Law Day you may wish to join us and should you need justice from a Posey County court the Bar’s approach should give you confidence in the outcome.

The Name Game

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Mt. Vernon High School
North Posey High School

On Monday, April 10, 2017 in the Posey Circuit Court a jury composed of attorneys from the Posey County Bar Association decided, that is declared, whether North Posey High School or Mt. Vernon High School or neither of them won the exclusive right to name the newly discovered planets of the dwarf star named Trappist-1. The Mock Trial was the centerpiece of the annual Posey County Law Day celebration during which America contrasts the role law plays in protecting our rights with systems where individual liberties are not paramount.

North Posey (A.K.A. Muhammad High School) student attorneys Zack Goebel and Veronica Inkenbrandt pitted themselves against Mt. Vernon (A.K.A. Peacock Throne High School) student lawyers Shane Vantlin and Ashley Ford. The case began when both fictional schools individually claimed to have developed a fund raising plan based on auctioning off the rights to name the seven newly found planets of Trappist-1, which are only 235 trillion miles from Earth. Each school claimed it thought of the scheme first but that the other high school purloined the plan.

Mr. Mike Kuhn and Ms. Michele Parrish are the advisors to the North Posey students who include the following participants and their roles as members of the two fictional private schools in Posey County, Indiana:

Hannah Braun – Sarah Jones, School Board President of Muhammad High School;
Ryan Daughtery – Jaime David, Edward Jones advisor;
Isaac Mayer – Akmed Barnes, Muhammad High School senior;
Josh Wiggins – Walter Cronkite, Science Reporter;
Lexi Fifer – Hagar Shunley, junior at Muhammad High School;
Jade Hill and Ethan Morlock, Alternates.

Mt. Vernon’s advisors are Ms. Lucy Steinhart and Mr. Tim Alcorn. Their students are:

Austin Bethel – Ibrehim Smith, School Board President of Peacock Throne High School;
Whitney Schaefer – Baretta Fife, Internal Revenue Agent;
Adam Duckworth – Julian Assange, Hacker;
Corinna Lambright – Rasheema Ellis, Morgan Stanley Financial Advisor;
Wade Ripple – Abdul Parker; senior at Peacock Throne High School; and,

If you want to know how the students and the Posey County Bar Association celebrated the Rule of Law over military might, you are welcome to tune in here next week.

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