James M. Redwine

John Peter Zenger

The National Inquirers

by Leave a Comment

Investigative journalism that uncovers and publicizes official corruption has an American tradition going back to John Peter Zenger who was born in Germany in 1697 and died in New York in 1746. Zenger was a printer who wrote exposé articles about our English cousins’ ham-fisted governance of New York, especially by the Royal Governor William Cosby. Cosby took umbrage at these early efforts to inform Americans about government malfeasance. Cosby had Zenger charged with libel but in 1735 a jury refused to convict Zenger because the jury determined that what Zenger wrote about Cosby was the truth. What Zenger printed about Cosby related directly and only to Cosby’s actions as governor. Cosby’s personal life was not in issue. Such subjects as the state of his laundry or personal habits were not material to Cosby’s official actions. There was no “need to know” any salacious scatology.

The First Amendment is our best protection from bad government but it should not be cited in support of mere muckraking. Gossip is fun, if it is about others, but it is not germane to curing our body politic of corruption or bad decisions. And a bipartisan cooperation on matters of national importance would be most welcome. We have certainly been blessed many times before with such attitudes. For example, Republican President William Howard Taft appointed Republican Henry L. Stimson (1867-1950) as Secretary of war (now Secretary of Defense) in 1911-1913. Then later two Democratic presidents, Franklin D. Roosevelt and Harry Truman, appointed Stimson for the same position (1940-1945). Stimson had the experience and knowledge America needed. His political party affiliation was irrelevant to understanding and meeting the threats to our country from Japan and Germany.

But even though Stimson was not naïve about foreign designs on American assets he famously eschewed delving into personal matters. Stimson’s most famous quote relates to secret Japanese dispatches. Stimson explained trust cannot be established by distrust. He succinctly posited: “Gentlemen do not read one another’s mail.”

As story after story and book after book come out about Joe Biden and Kamala Harris and Donald Trump and Mike Pence the muckraking inundates the investigative journalism. We do need to know our politicians’ philosophies, positions and past performances. But such information is sometimes obfuscated by “revelations” about their personal lives and peccadilloes.

The American Volksgeist

by Leave a Comment

During August and September this year, as for several years before, the National Judicial College will be presenting Internet courses to judges from across America. Other members of the NJC faculty and I will discuss with student judges via computer and telephone how to bring more just results in our courts.

The faculty is comprised of volunteer judges and staff in Nevada, Colorado, Indiana, Mississippi and Tennessee. My experience over several years of judging and continuing judicial education by both Internet and brick and mortar classes has led me to the conclusion judges should not concentrate on techniques but rather systems of thought, i.e., legal theory. “How to” knowledge is helpful but “why to” understanding is vital.

Friedrich Karl von Savigny (1779 – 1861) was a German legal philosopher who believed a nation’s legal system arises from the volksgeist or national spirit of a people, that is, law is determined by the unique character of a nation. Or, as put by the American legal philosopher Oliver Wendell Holmes, Jr. (1841 – 1935):

“The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”

Common Law is a term used to mean judge made law, law developed through the courts, not the legislature or an executive such as a king.

America’s common law in the years before the Revolution of 1776 arose as an effort by American judges, lawyers and juries to curb the abuses of King George, III, and the British Parliament. The 1735 case of John Peter Zenger (1697 – 1746), a New York printer who published articles about the king and parliament, illustrates the national spirit of the Colonies. Zenger was charged by the Crown with seditious libel but a jury refused to find him guilty because what he published was true.

This American spirit of rebellion permeated the Declaration of Independence and is enshrined in our Constitution that was designed to keep government power in check and protect individual citizens.

Our volksgeist is our sense of a distrust of centralized power and the preservation of individual civil rights. America and her judges need constant reminders of where we came from and who we are. That’s what I plan to both study and teach.