James M. Redwine

democracy

The End of Days

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What makes life worth living? The ability to choose. If humans cannot choose what they do, then we are as livestock. When Americans travel to some foreign countries we are often perplexed by the reluctance of many of their citizens to voice their true opinions or openly protest the actions of their governments. One of the greatest values of foreign travel is the appreciation Americans discover of our freedom in America to say what we truly believe without fear.

So, when violence is perpetrated against Americans in America for speaking their minds, it jars our collective psyches. We may not agree with a speaker’s politics, religion, philosophy or choice of sports teams, but our First Amendment gives others the right to their expressions as well as our right to air our opposition. Our 249 years of free speech is why we will likely make it to our 250th birthday.

Our nation has often had to struggle to cling to this most important of democracy’s fundamental rights. We have survived a Civil War, McCarthyism, civil rights battles over gender, age, voting, foreign entanglements and countless other tears in the fabric of our rights to choose and freely express our true opinions.

It may seem the current atmosphere of attempts to silence unwanted different positions is unique. That is not correct. Our fledgling country survived a deadly duel between Alexander Hamilton, the Secretary of the Treasury, and sitting Vice-President, Aaron Burr, on July 11, 1804.

America has a long and varied history of violence against people for their political views. We have struggled through presidents Abraham Lincoln, James Garfield, William McKinley and John Kennedy being assassinated. Presidential candidate Robert Kennedy was killed while campaigning and several other presidents and candidates have had assassination attempts made against their lives: George Wallace, Theodore Roosevelt and Donald Trump to name but three.

There have been numerous assassination attempts made against other sitting presidents: Gerald Ford, Ronald Reagan, and both George H.W. Bush and George W. Bush. It is apparent that public service can be dangerous. Also, numerous plots against other American politicians have been both foiled and carried out. Being a public figure in America, especially one with strong views on emotional subjects, seems to bring out the worst in some people who wish to silence free expression.

Of course, in our contemporary society, our national media and others do not hesitate to assert that the most recent violence against someone else’s right to choose is the death knell of our democracy. These pronouncements are often coupled with diatribes against whatever political position is represented as in opposition to the attacked speaker’s political philosophy.

We do and should mourn and regret any violence against a public figure, such as Charlie Kirk, who may have been attacked simply because of his or her strong views, whatever they are. However, to predict our country’s demise based on attempts to quell freedom of expression is not supported by our long history of political violence. Draconian responses to horrific incidents of violence may be themselves quite damaging to our right to choose and, per force, to our democracy.

Food Fight

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President Trump spoke to a joint session of Congress on Tuesday, March 04, 2025 for 99 minutes. His entrance to and exit from the podium each took about 15 minutes. The Cabinet, the Supreme Court and the Joint Chiefs of Staff were in attendance as were invited guests, members of the media and numerous interested observers. The proceedings were telecast to the world by several media outlets who commentated on the events. The Democratic Party’s selected responder, Senator Elissa Slotkin, spoke briefly after President Trump.

As the President entered the chamber numerous Democrat senators and house members turned their backs, displayed custom designed placards with anti-MAGA comments and did not applaud; virtually all Republican members applauded incessantly, cheered and arose to stand many times. On television, the effect was as if one-half of attendees were at the Super Bowl and the other half were at a funeral. The gathering looked like a combination of sycophants and official witnesses at an execution who alternated between tossing roses and brickbats.

My reaction was to be rhetorically reminded of food fights at summer camp. My guess is the only reason there was no general tossing of rotten eggs is due to the price. My overarching impression was: surely there is a better way for members of our national government to interact concerning issues. I will suggest a couple: The Executive Branch could remain in the West Wing while both houses of the Legislative Branch submit proposed bills for the President’s consideration. The Supreme Court could remain stoic unless called upon to resolve a Constitutional issue. The military could and should remain at each of their designated posts until and unless America needs defending as determined by Congress and the President.

There is no good reason to subject anyone to the burlesque show that taxpayers are paying trillions to endure. If Tuesday night was democracy in action, perhaps we need, at least, less action. I call for no more “Joint Sessions” of any kind. As our mothers made clear, “If you cannot play nice, you will not play”.

A Teetering Balance

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Our federal democracy is seen as having three equal branches that keep our democracy by equally asserting restraints on one another. The Legislative Branch plays its part by having 435 representatives elected for 2-year terms by citizens throughout the country along with 100 senators elected for 6-year terms. These just over 500 individuals have many functions but they really have only one power, providing or restricting funds to themselves and to the other two branches of government, the Executive and Judicial Branches.

 The Executive Branch has thousands of functionaries but its most powerful executive is the President who directly and indirectly heads the military and countless other divisions of that diverse branch. Each of those often nameless bureaucracies has untold, often nameless, functionaries whose functions may hold the key to whether our government functions.

The Judicial Branch is easy to generally designate but much more difficult for the populace and the other two branches to corral as the Judicial Branch has generally defined itself since Marbury v. Madison in 1803. In fact, the Judicial Branch jealously and vigorously spends much of its time struggling to make sure the other two branches do not infringe on its powers, the chief of which is to define what the law allows the other two branches to do.

This theory of a three equal and separate foundation of our democracy works well as long as the powers of each branch remain truly separate and fairly balanced and each branch is composed of greatly dispersed functionaries. It is not a novel observation that our great democracy has remained democratic, mostly, because it remains diverse, dispersed and divided. When power becomes concentrated in a particular individual or individuals or branch, democracy suffers and internecine competitions may arise. Such theoretical and rhetorical battles can, as our Civil War proved, break out into real battles as one or two or even all three of the branches seek dominance.

Currently, we have members of each branch asserting efforts to imprint upon our whole country the vision of a few executives, followed by a few judges, both entities being subject to the status of financial hostages from a powerful few in the Legislative Branch. Now, some may analyze our current imbroglio as evidence our three-branch theory is simply working itself out in practice. That could be true. However, I hypothesize our Founding Fathers may have neglected the Fourth Branch of our social/governmental structure, the citizenry. Normally we have an electorate that, while unhappy perhaps, still finds a way to “soldier on”.

Our current social intercourse pits about one-half of America against the other half, sort of like the times of theDred Scott v. Sandford case of 1857 that led to the Civil War. Much as when a large portion of the United States agreed with the U.S. Supreme Court that African Americans were not citizens while another large portion disagreed. Many Americans today either agree or disagree with Birthright Citizenship and several other issues. One President and at least one federal judge come down on opposite sides of this citizenship issue and probably several others.

Such matters being seen diametrically opposite by each of two of our branches and both branches awaiting input from the Legislative and more importantly the public, creates a situation where our national soul may be at war with itself. What is called for is much more equal and reasonable input from each branch, especially that Fourth Branch, the populace.

70 X 7

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Peter eventually made it to the rank of saint; although he may have paid a heavy price for it. Peter was uncouth but Jesus stated he was the foundation of Jesus’ church. According to the New Testament, Jesus and Peter had many one-on-one conversations about theological matters, including forgiveness. In Matthew, Ch. 18, vs. 15-21, Peter asked Jesus, “Lord, how often shall my brother sin against me, and I forgive him? As many as seven times?” Jesus said to him, “I do not say to you seven times, but seventy times seven.”

In other words, both Donald Trump and Hunter Biden are clothed with a robe of get out of jail free cards based on our Constitution’s Presidential Pardon Power. Oklahoma’s State Superintendent of Public Instruction, Ryan Walters, is not correct; America was not founded on Biblical principles but on principles of the European Enlightenment. Its army was led by George Washington who owned slaves and its Constitution was drafted by fellow slave owner James Madison who was Washington’s staunchest supporter. Washington’s physical presence and Madison’s great mental prowess were two of the main building blocks of our country. The President’s Pardon Power was inserted into the Constitution, probably, because most of the Founding Fathers who had a foundation in the history of the monarchies of Europe expected George Washington to become America’s first king and the Pardon Power was most likely a vestige of the European “Divine Right of Kings” to have the “Final Say” in matters calling for mercy. Instead, we might seek guidance from our Founding Fathers and such other secular authorities as Professor Joseph Campbell who taught mythology and literature at Sarah Lawrence College for many years. Unfortunately, Professor Campbell passed away in 1987, but in his 1972 book Myths to Live By at pages 188-189 Campbell wrote:

…. “The modern Western concept of a legal code is not of a list of unassailable divine edicts {such as the Code of Hammurabi or the Ten Commandments for examples} but of a rationally contrived, evolving compilation of statutes, shaped by fallible human beings in council, to realize rationally recognized social (and therefore temporal) aims. We understand that our laws are not divinely ordained; and we know also that no laws of any people on earth ever were.”

Both Joe Biden and Donald Trump must navigate America’s Constitution where Article II, §2, clause 1 provides, “The President shall have Power to grant Reprieves and Pardons for Offences against the United States, except in cases of Impeachment.”

Pardons are granted by democratically elected Presidents. Over the years thousands of pardons have been granted. President Biden has pardoned his own son after repeatedly and publicly stating he would not. Donald Trump may pardon numerous January 06, 2020 defendants after repeatedly and publicly stating he would. Some people find both Presidents’ actions repugnant. If so, they may work to change the people-made Constitution or work to elect somebody else or impeach whomever the country has elected. After all, our Founding Fathers bequeathed to us a democracy based on free will.

 

Democracy At Risk

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Lake James, Indiana. Photo by Peg Redwine

Donald Trump did not find fault with his election victory over Hillary Clinton in 2016 even though many Americans were astonished. However, four years later President Trump and many others questioned President Joe Biden’s victory. Some Trump supporters even marched and more on January 06, 2021 in protest as still sitting President Trump verbally urged them on.

Former President Trump is now seeking the presidency again, but some are protesting his right to do so. These never Trumpers are asserting that Trump is now prohibited from running by Section 3 of the Fourteenth Amendment to the United States Constitution that provides:

“No person shall be a Senator or Representative in Congress or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

As many of us learned in high school, the 13th, 14th and 15th Amendments to the Constitution were ratified by Congress soon after the Civil War. Generally, the 13th prohibited slavery, the 14th provided for Due Process for Blacks, including citizenship, while the 15th gave Black men the right to vote.

I do not know about you, Gentle Reader, but I had never given a moment’s thought to Section 3 until after January 06, 2021 and until former President Trump announced his intention to run again. I do recall Alabama Governor George Wallace who defied the United States Supreme Court’s decision of 1954 in Brown vs The Topeka, Kansas Board of Education that ordered an end to school segregation. In Wallace’s inauguration address on January 14, 1963 he declared, “…segregation now, segregation tomorrow, segregation forever”. Yet, Wallace was allowed to run for the presidency only five years later in 1968 without anyone raising the 14th Amendment. America’s voters made their free democratic choice and rejected Wallace’s racist position.

The first time I heard mention of Section 3 being used to keep Trump off the ballot I remember my bemusement. Then, as the tiny tinkling of the anti-Trump candidacy tocsin became a loud tolling of ballot disqualification, my bemusement became concern.

Some who advance the preemption of Trump’s second term warn that our democracy would be in danger if he is reelected. These self-anointed saviors assert that to preserve our democracy we must assure the MAGA fanatics cannot steal our self-government. And the best way to do this is to disenfranchise them by eliminating their candidate from the ballot. Well, you see the oxymoron of saving democracy by denying it to those they dislike. Yet, that is the petard the Section 3 crowd is raising. Of course, they know that just as with Bush vs. Gore 2000, the matter will end up in the tender mercies of the majority of the U.S. Supreme Court. How did that work out for our democracy? Can you say Iraq War?

Politics is not Bean Bag. If you have never run for political office and lost, you may not appreciate the visceral impact it has. Most people have played on or supported some sports team and have experienced the disbelief and angst from some loss they attribute to a bad call by an umpire or referee. Well, I assure you, Gentle Reader, a loss of an election is a much more gut-wrenching experience.

As one of my brothers told me after he lost his only foray into local politics, “I cannot understand how I lost, everyone I talked to told me they voted for me”. No matter how graciously a losing candidate handles a loss, many of them wonder if, in fact, they won and somehow the outcome should have been otherwise. Ergo, Donald Trump was a part of that, “I can’t believe it!”, tradition. Was he wrong? Was he a poor sport? Was he a jerk? Yes, yes and yes. Did he take up arms against the United States? No.

Should we attempt to save our democracy by keeping him off the ballot? No! Let the voters decide. Part of democracy means allowing people to make poor choices or, at least, choices we dislike. However, democracy means making sure we all have the right to do so.

Whose Ox?

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Intractable problems such as judicial ethics and separation of powers are often intractable because we attempt to apply an inapplicable solution to them. If we notice one of our vehicle tires with a nail in it continues to lose air no matter how many times we air it up, it is time to remove the tire and remove the nail.

The United States Supreme Court’s image is not being denigrated by CNN, MSNBC and most other news outlets because its justices and their families receive emoluments but because some groups do not like some of the decisions of some justices. Politics, not ethics is the petard that is being raised to demand Supreme Court justices decide cases the “right” way or else.

But politics, not ethics is the proper tool to address judicial ethical issues. Our Constitution already has remedies for controlling judicial behavior. Article I, Section 9 contains the Emoluments Clause and Article I of the Constitution sets forth the procedure for removing government officials for treason, bribery or other high crimes and misdemeanors. And Article III provides federal judges only retain their positions “during good behavior” and it is up to Congress what that entails.

The proper solution for changing a court’s policy decision a majority of Americans do not agree with is to change the judges, not assail their character. Some justices are championed by some segments of our society and castigated by other segments. For example, Clarence Thomas is vilified by liberals who deified Ruth Bader Ginsburg who was abhorred by conservatives. Yet both Thomas and Ginsburg, and most other justices, have accepted expensive favors from numerous groups and individuals. Such “unethical” behavior only becomes an issue when raised in the context of which president nominated the justices.

Currently America accepts without demurral that justices Roberts, Kavanaugh, Gorsuch, Coney-Barrett, Alito and Thomas are “G.O.P.”/conservatives and Brown, Kagan and Sotomayor are Democrat/liberals. These designations are not even debated except when, rarely, Roberts wanders over to just left of center. In other words, America knows each justice was selected for her or his views in a political process and by politicians but without input from the general citizenry.

America does not need to engage in attempts to control judges by imposing ethical constraints. What we need is to subject all three equal and separate branches to the will of the citizenry whose lives are defined by the politicians of all three branches. As I have been saying publicly and in print for several years, elect all judges and establish term limits for them.

The best remedy for establishing ethical behavior is to elect judges of character who will choose the harder right over the easier wrong. Each law school needs to establish a judicial track that develops competent potential judges of good character. Then each state and the federal government should define by statute the requirements to run for a judicial office that has one set term. The president must be 35 years old (Article II of the Constitution). That seems reasonable to me. I suggest a clean felony record and 10 years of regular law practice might also be good. However, we should not have committees decide who is eligible to run for a judgeship. The American electorate should have that power after a few minimal qualifications. And a non-partisan election as part of the regular election cycle should suffice.

We can solve the judicial behavior problem best by impowering all voting Americans to choose all three branches of our government. If we are going to end our current highly political judicial selection process, let’s do so by replacing it with a system based on democracy, not cronyism.