James M. Redwine

Congress

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

Legally Thinking

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Mount Rushmore

 

My brother, Philip Redwine, that is Philip spelled with the Biblical one “l”, graduated from the Oklahoma University Law School while I was an undergraduate at Indiana University. When I asked him what he had been taught he told me the entire process boiled down to “learning to think like a lawyer”. When I excitedly quizzed him about that arcane and mysterious subject he replied the whole three years of law school could be summarized by the following story:

“A client asked his attorney for advice as to whether he should file for a divorce. The client told the attorney that each time he tried to climb the stairs to the second floor of the couple’s home his wife would kick him back down. The man said to the attorney, ‘Doesn’t that show she doesn’t love me anymore?’ The attorney reflected on the situation and thoughtfully responded, ‘Either that or she just doesn’t want you upstairs.’”

So, to think like a lawyer means to objectively consider a situation from all sides and apply any relevant analogies to it. After three years of my own legal education at Indiana University, then ten years practicing law and forty years of being a judge, my conclusion is my brother was right and that lawyer-type analysis requires imagination and objective open-mindedness. I respectfully suggest we may want to try this approach to our COVID-19 impacted situation as some of our greatest legally trained presidents might have done. Yes, we must act now but we should do so with wisdom, courage and imagination.

Vision and objectivity have certainly been displayed by several of our greatest non-legally trained presidents. George Washington and Theodore Roosevelt readily come to mind. However, I would like to discuss with you a few of our legally thinking leaders who helped guide us through tough times by having the ability to seize opportunity from crisis by winnowing the wheat from the chaff.

Thomas Jefferson saw the Louisiana Purchase of 1803 and the Lewis and Clark Expedition of 1803-1806 as a means of expanding the United States from the Atlantic to the Pacific and discovering the untold resources of our country. Jefferson did this at a time when most Americans still feared, or too much admired, Great Britain. And he had to maneuver the funding through a skeptical Congress.

The Golden Spike

Abraham Lincoln was faced with the possibility of California seceding from the Union and with slavery remaining as a state option even if the South were defeated. He boldly issued the Emancipation Proclamation in 1863 and that same year signed the bill funding the Intercontinental Railroad. Lincoln did not live to see the golden spike driven at Promontory, Utah on May 10, 1869, but his use of grants of public lands and issuance of bonds helped preserve the Union he so admired.

Franklin Roosevelt saw the need for a great infusion of public funds for the education and re-employment of our out-of-work Americans during the Great Depression. Thanks to his vision America was much better prepared to respond to Japan and Germany in World War II.

John Kennedy started us on the elliptical route to the moon as financed with public monies. The vast number of jobs, products and conveniences the Space Program brought are still being enjoyed by our citizens.

I do not cite these heroes’ legal training as required for a novel approach to the Novel Virus. Millions of Americans can see that borrowing trillions of dollars to help people for a short time merely delays the pain. A cure requires applying our resources with a long view. We can invest in ourselves for the future while helping those in need now.

Germany’s Autobahn

One need not be a lawyer to see an issue such as COVID-19 from all sides and apply similar solutions as were used in similar prior crises. President Eisenhower was a West Point trained soldier who planned the greatest military invasion in history and could envision the benefits from a German Autobahn-type interstate highway system for America. And my friend, Warren Batts, is not an attorney but a rock ’n roll musician who suggests we could build a national high speed railway passenger system utilizing the middle portion of our already existing interstate rights-of-way between the separated lanes of traffic.

What we need, from our lawyers and non-lawyers combined, is the vision to prepare for our new society as it will surely be transformed by the Corona Virus. We will be changed but we can transform not regress. New skills can be taught using public funds as we did with the Lewis and Clarke Expedition, the Transcontinental Railroad, the Civilian Conservation Corps and the Space Program.

I realize these are not new ideas. That is my legally thinking point. You, Gentle Reader, will surely have several similar suggestions of your own, which I encourage you to share.

Not So Bad After All

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As our country nears its 243rd birthday we Americans may feel as if all is gloom and doom. Members of Congress are calling for the impeachment of President Trump. President Trump is tweeting out claims that some Congress people are traitors. CNN accuses FOX News of being a sycophant for the White House. Rush Limbaugh proclaims CNN, MSNBC, The New York Times and The Washington Post are not news agencies but simply “fake news” whose agendas have a single minded mission to remove the President from office.

At coffee shops and taverns throughout the United States one-time friends cannot carry on a respectful conversation. Even churches are choosing sides. In short, the last election drags into its third year and the next election is morphing into a mere continuation of the election past. Political pundits and politicians are donning sackcloth and ashes or arming themselves with skewers to assassinate the characters of those who have the temerity to disagree with them. It ain’t good, folks. Are we falling apart?

No! We are practicing the democracy bequeathed to us on July 04, 1776. A healthy lack of respect for the opinions of others is our birthright. As long as we simply “suffer the slings and arrows” and do not “take up arms to oppose them” it is all as clanging brass and hollow threats. In fact, our current political climate is about the same as it has been since John Adams and Thomas Jefferson, who both signed the Declaration of Independence, saw their close friendship dissolve over policy differences. It is America. We have the right, perhaps the duty, to voice our disagreements.

What we do not want to lose sight of is policy differences are important but should not be lethal. Maybe we should step back, take a deep breath and see how another country, North Korea for example, handles allegations of treason.

We do not know the facts and should be cautious of reports from either North Korea or other countries that may wish to harm North Korea. With that said, it has been “reported” that Kim Jong Un of North Korea was upset over the failed summit between Kim and President Trump to the point he imprisoned some of his negotiators and executed several others. He allegedly declared them traitors. Even if these reports are exaggerated, the contrast between America’s hyperbole and North Korea’s drastic actions should remind us of what the Fourth of July truly means.

Who Works for Whom?

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You may be aware of a story in the January 11, 2019 New York Times that disclosed the FBI decided to investigate President Trump for possible treason right after he fired FBI Director James B. Comey. As America divides almost in half over whether Donald Trump is a messiah or a menace, probably half of you who read the Times story were infuriated and half of you were elated. Perhaps this column may invoke similar reactions, among a somewhat smaller audience of course.

If you have read Gavel Gamut over the past 28 years you may recall my general philosophical position on our political system is that democracy not bureaucracy is the ideal. In other words, if we want to keep control of our government and our freedom, we should elect all public officials, they should all be term-limited and bureaucrats should be subservient to elected officer holders. Much as we make our military subservient to our civilian authority, we should make sure we do not allow unelected, life-time appointees to rule us via unfettered discretion.

On the local level that means our law enforcement community’s duty is to serve and protect not abuse. And at the federal level that means our FBI, CIA, FISA (United States Foreign Intelligence Surveillance Court) and other agencies should serve at the pleasure of our elected officials because we can know who our officials are, and we have the power to remove them at the next election.

Unfortunately, our FBI has always been a political organization with shifting ideologies depending upon the bureaucrats, especially the Directors, who lead them. As set forth on National Public Radio in a January 26, 2018 report:

“Everyone agrees that the FBI should be as professional and impartial as possible and that its investigations should not be driven by any political agenda or vendetta. That has always been the ideal.

… As a matter of reality, the FBI has been political from its outset.

… Surely there is a massive case of collective amnesia afflicting Washington and much of the media commentariat on that score.”

NPR then exposited the sordid history of the FBI being used to harass Dr. Martin Luther King, Jr., anti-war protesters during the Viet Nam War and numerous instances of FBI surveillances and investigations of civil rights activists by agents of the FBI whose main purpose was to advance partisan political positions.

I realize if you hate the President, you want him investigated. If you hate Hillary Clinton, you want her investigated. And if you hate your neighbors, you want them investigated. However, you might reflect on the possibility they feel the same way.

As for politically connected matters, some do need to be addressed and even investigated. I respectfully suggest that should remain the purview of Congress. They will gladly proceed.

Common Law Is Common Sense

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There are two general categories of American law: Civil Law (statutes and other written rules), and Common Law (case decisions or judge-made law). Civil law normally comes from a legislative body such as Congress and is published in the form of statues. Common Law is derived from precedent, that is, deciding a current legal controversy by referring to how similar controversies have been resolved by judges in the past. Another way of looking at Common Law is thinking about how we all learn things from our parents, in other words, benefitting from their good and bad experiences which they share with us.

If you should be among that select few who regularly read this column you may recall a couple of weeks ago we were considering the Common Law/Common Sense guidance set forth by some of my fellow alumni and alumnae of the National Judicial College in Reno, Nevada. I find I have learned more from the wisdom of my fellow judges than any classroom. You probably feel the same way about how you have relied on the good and bad experiences of others to help you repeat or avoid similar situations.

Following are a few more “Common Laws” taken from an article in Case In Point, the NJC 2017-2018 publication concerning, Things Judges Wish They Had Known BEFORE They Took The Bench:

“Part of a judge’s developed skill, especially a rural judge, is having a feel for whether or not a particular case will actually go to trial. This helps immensely with case scheduling, jury summoning and with the possibility of a judge getting a good night’s sleep almost every night. I finally concluded that a lesson could be learned from the occupation of circus ringmaster.”
Hon. Jess B. Clanton, Jr. (Ret.), 12th Judicial District, Oklahoma;

“How much this job would change how I view the world. I had spent 30 years as a police officer prior to being appointed, and I thought I had a good view of the world. This job made me step back and really look at everything-everything I did, everything I posted, everything I said to friends and how I acted in public and around my family. I really wanted people to look at me and respect me for the job I was doing. In doing so, I had to step up and make sure I was worthy.”
Hon. Kevin L Wilson, Justice of the Peace Court, Kent County, Delaware;

“How hard it is to be firm and uphold the values and rules when the person in front of you has been so beaten down by life that it makes it feel like you are kicking a poor wounded animal. … Somewhere in the middle you have to find justice.”
Hon. Jeanette L. Umphress, Municipal Court of Yuma County, Arizona;

“You are only as good as your worst hearing.”
Hon. Samuel A. Thumma, Arizona Court of Appeals, Division One; and,

“Never, NEVER go on the bench with a full bladder!”
Hon. Peter H. Wolf, Superior Court, District of Columbia

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.