James M. Redwine

James Madison

You Say You Want A Revolution

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Photo by Peg Redwine

The Beatles sang:

♪ You say you want a revolution
…
You say you’ll change the Constitution
Well, you know
We all want to change the world
You tell me it’s the institution
Well, you know
You’d better free your mind instead ♪

I do not know why those British songsters were singing about changing America’s Constitution during the Viet Nam War. Perhaps they were just selling a song or perhaps they felt it was a return to 1776. Regardless, today in the United States it seems a lot of Americans seek to remake America in their own image and the quickest way is a revolution. Of course, not much thought may have gone into what a revolution would truly mean in 2025 et. seq.

On the other hand, James Madison of the small body and the gigantic brain gave the written word to the revolution he had just participated in and the possible future ones he wanted to prevent by designing a United States Constitution based on a theory that all humans seek to expand their power as much as they are allowed. Therefore, for a democracy to continue existing, the bedrock of our country had to be a government made up of separate functions controlled by competing separate and equal powers. As a people we have had a history of teetering from side to side with only occasionally tipping completely over to any one branch gaining too much power.

The Civil War broke out because all three branches chose conflict over compromise on the issues of slavery and the human rights of African Americans. On other visceral issues, such as Native American rights, Women’s right to vote, use of alcohol or marijuana or wars such as World Wars I and II, Korea, Vietnam and Iraq, we have managed to let the struggling of the separate governmental powers find a way to come out in an acceptable equilibrium.

We have had countless opportunities to lose our democracy but have eventually stepped back from the brink. The United States Supreme Court has taken more than one foray into excessive power, such as Dred Scott v. Sandford (1857). During Chief Justice Earl Warren’s reign (1953-1969) the Court’s ultra-liberal rulings had much of the public up in arms. There were even billboards on the highways calling for Warren’s impeachment.

And the Legislative Branch has had its attempts at being the conscience of America also. For example, Wisconsin Senator Joseph McCarthy set himself up to be the ultimate determiner of what a “true American” was. During the era of “McCarthyism” in the 1940’s and 1950’s the American public generally bought into his “Red Scare” tactics until the facts overcame his allegations.

But it has usually been the Executive Branch where the abuse of power has been the most obvious. The most salient example was Franklin Delano Roosevelt who was president from 1933 until his death during his fourth term in 1945. Even though a great majority of both Congress and the American people objected to American involvement in WWII, Roosevelt manipulated the United States into the war. Of course, he had the aggression of Japan to help his argument.

It was Roosevelt’s long-term in office and some of his unpopular policies that brought about the 22nd Amendment to the U.S. Constitution that forbids anyone from serving more than two terms as President. Although some supporters of President Donald Trump have advanced the possibility of an exception to this amendment for President Trump. Such moves on behalf of Donald Trump and the current makeup of the U.S. Supreme Court are raising concerns among anti-Trumpers. There exists the possibility that neither the Supreme Court nor the Legislature may provide a proper balance for our democracy as both may be biased in favor of President Trump, especially as about one-half of the electorate has supported him and his policies.

While a revolution may be extremely unlikely, so have been numerous other shifts in power in America throughout our history. There is no need yet to call for extraordinary action by any branch nor from the news media or the public. However, it is the fabric of our democracy that may be being tested once again. There is no harm in remaining true to the wisdom of our nation’s charter and there could be harm from failing to reference it.

Photo by Peg Redwine

TikTok

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Photo by Peg Redwine

Congress and President Biden have decided to save America from the disclosure of state secrets by the Kardashian wannabees of our society. Peg and I do not do TikTok but occasionally some marginally functioning teenager will create a TikTok post that is so lacking in taste and talent that the main stream media airs it as a parody. Those are the only TikToks I have seen; that’s plenty.

Physically unattractive people gyrating to two-beat music while wearing too small bikinis is not my choice of leisure listening and viewing. Fortunately, the shameless exhibitionists who are totally lacking in true self-images almost never say anything. So, at least, we only are assaulted by their physical repugnance.

Why we are paying our leaders to spend countless hours on the foibles of misguided or unguided youths while Congress is profligately spending 100 billion dollars per year arming every country from Ukraine to Israel is a mystery to me. Perhaps they should concentrate on such issues as war and the environment or even why our banks are failing and why inflation is wreaking havoc on our 401(k)s. Regardless, the CEO of TikTok, Shou Zi Chew, is going before Congress’ House Energy and Commerce Committee this month to explain the First Amendment to people who should already know it.

When our Constitution was adopted the very First Amendment provided:

“Congress shall make no law respecting an establishment of religion, or prohibit the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The great English legal philosopher, John Locke (1632-1704), helped lead the Enlightenment. The American legal philosopher, James Madison (1751-1836), owed so much to Locke in Madison’s drafting of our Constitution, particularly the Bill of Rights. Both Locke and Madison strongly believed Freedom of Speech was essential to preserving all other freedoms.

It is ironic that our leaders of today cite fear of Russia and China as they call for restrictions on free speech. We have long rightfully complained that China and Russia severely restrict their citizens’ right to freely express themselves. Now we want to make federal law based on that same fear of American citizens that the Chinese and Russians enforce as to such patriots as Alexei Navalny. At least, Navalny actually has something to say that Putin should fear, that is the truth. TikTokers pretty much simply wish to share their irrelevant and boorish behaviors.

My guess is our leaders are as clueless about the workings of TikTok as I am and that they are simply knee-jerking to baseless fears of the very people who put them in office. What about such public policy as the 1966 Freedom of Information Act that was enacted to guarantee the people could monitor their government? Then there is the 2014 Digital Accountability and Transparency Act that allows taxpayers to track government spending. Have our current leaders decided too much information in the hands of Americans is dangerous, at least if that information can be accessed by foreign governments, as they can easily do with a simple request for data?

Of course, Congress and the President say they fear China and Russia and other countries will mine the internet data and use it against us. But every credit card transaction, every online post such as filing a tax return, every cell phone use is already “mineable.”  Any hostile foreign country can already legally obtain more information than they would ever need via our own legal system. I ask you, Gentle Reader, is there anything on TikTok that could be used to start a lawnmower much less build a nuclear weapon?

I would like for our leaders to revisit Joseph Goebbels who was evil but prescient when he said, “If you repeat a lie often enough, people will believe it, and you will even come to believe it yourself.” In other words, our government is making its own reality and using that as the basis to restrict our rights under the First Amendment.

Another author that should be considered is Franz Kafka whose hero, Joseph K in The Trial, pointed out that the enacted laws made it impossible for anyone to rely on what the law truly is. This is much like George Orwell’s “Newspeak” in 1984 where the only true purpose of governmental language was to control the populace.

In other words, instead of taking Vladimir Putin and Xi Jinping as our free speech guides, perhaps we should look to our Constitution and our history and rationally analyze TikTok and its mainly pathetic users. I point out that just last year (2022) the European Union, which we look upon favorably, passed the Data Act (Digital Accountability and Transparency Act) that was designed to standardize international contracting and commerce by standardizing digital and internet language. Should we not also want to clarify by expanding instead of restricting internet usage even if the usage may be frivolous?

I call upon Congress and the President to not put the means as Kafka might say, “to exercise discretionary moral judgment” by the lone U.S. Secretary of Commerce to determine “freedom of speech” when it comes to foreign technologies and companies. That is how the proposed anti-TikTok law is structured. Instead, let’s have faith in ourselves and also recognize the banality and futility of trying to draft laws that defy human nature and common sense and by the way, are most likely unconstitutional and unenforceable.

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.

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.

 

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.

 

Legal Slight of Hand

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After last week’s scintillating column on Constitutional Law I know you are eagerly awaiting promised round two on politics and the United States Supreme Court. Of course, America’s judiciary eschews any notion that court outcomes are sometimes a product of the political views of the judge or judges who decide the cases. At the National Judicial College where I have served as a part-time faculty member since 1995 one of the guiding principles is the effort to have completely impartial judging of all cases. That is a proper goal. However, is that goal always achieved? Let’s take a look behind the black robes of history starting with America’s most famous case, Marbury v. Madison, decided in 1803 a mere sixteen years after the end of the Constitutional Convention that occurred on September 17, 1787.

You may recall that last week we had sought guidance on understanding the U.S. Constitution from law professor Michael Klarman who spoke to the Indiana Graduate Judges Seminar in French Lick, Indiana in June 2019. In his book The Framers’ Coup, The Making of the United States Constitution, Professor Klarman gave an in-depth analysis of the political warfare that produced our Constitution. A similar phenomenon occurred when the fourth Chief Justice of the Supreme Court, John Marshall, blatantly grabbed for the U.S. Supreme Court the immense power to declare whether a particular law was constitutional. Marshall deftly, and unethically, used the virulent hatred between those early Americans who favored a strong central government, the Federalists, and the anti-Federalists who preferred a more citizen-centered national government. John Adams was our second president and he was one of the strongest proponents of a strong central government. Adams was defeated in an election by our third president Thomas Jefferson in a bitterly fought campaign. John Marshall served as Adams’ Secretary of State and Marshall and Jefferson despised one another. Just before Adams’ term as president ran out he appointed John Marshall to be Chief Justice of the U.S. Supreme Court. Marshall was succeeded as Secretary of State by James Madison who, incidentally, later became our fourth president.

Just before John Adams left office he also appointed numerous judges and justices of the peace as a sharp stick in the eye of the incoming president Thomas Jefferson. William Marbury, a wealthy businessman and vocal opponent of Jefferson, was one of Adams’ justice of the peace appointees. While Secretary of State, John Marshall had the duty of signing Marbury’s certificate of appointment and delivering it to Congress. Marshall failed to get that done and the task was left to new Secretary of State James Madison. But President Jefferson, who was angry at John Adams for the last minute appointments, ordered Madison to not deliver Marbury’s certificate. Marbury then filed a law suit in the Supreme Court seeking to have the Court order Madison to give Marbury the certificate of appointment.

If all this intrigue seems rather petty and even perhaps reminiscent of our current political climate involving nasty actions on all sides, well, the pettiness turned out to have a momentous affect on every court case in America after 1803. The squabble may have resembled a tempest in a teapot but Chief Justice John Marshall’s highly political decision in the case resulted in a federal judiciary of immense power, a power not contemplated by many of our Founders and Framers of our Constitution.

Because of his earlier direct connection to Marbury’s appointment John Marshall should have recused himself from the case and should have had no part in it. However, Marshall seized upon Thomas Jefferson’s hatred of John Adams to trade what Jefferson wanted, that is to prevent Adams’ last minute appointments, for a huge leap toward a strong centralized government where the Judicial Branch would have power over decisions of both the Legislative and Executive Branches’ decisions.

What John Marshall and two more members of the then five member Supreme Court decided was that the legislative act that purported to give jurisdiction over cases such as the one brought by Marbury violated the Constitution therefore the Supreme Court had no authority to order Madison to give Marbury his certificate. It might appear to have been a win for Jefferson over Adams, but it was the ultimate Pyrrhic victory as Marshall and all future courts used it as a nuclear weapon in the war between the Federalists and anti-Federalists. Supreme power over what the Constitution meant has resided in the Supreme Court ever since 1803.

For example, in Dred Scott v. Sandford (1857) Chief Justice Roger Taney, a former slave owner, and the U.S. Supreme Court ruled Negro slaves had no rights that the Constitution was bound to protect. Then in George Bush v. Al Gore (2000) a bitterly divided court led by Chief Justice William Rehnquist who had been appointed by Republican President Richard Nixon to be an associate justice then by Republican President Ronald Reagan to be Chief Justice handed the presidential election to Republican George Bush.

So, as America’s judiciary proclaims it must remain independent from outside influences and look only to the law and the facts, it might appear to some cynics that the blindfold often slips. Anyway, I am certain you probably feel the same sense of relief in finishing this column that I did in finishing law school and Professor Klarman’s book. On the bright side however, the rest of your day is bound to get better.